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D. van Zy] Smit'

Legal Standards and the Limits of Community Sanctions 1. INTRODUCTION There can be little doubt that there is a widespread international trend towards the introduction of a range of sanctions which is designed to take an intermediate place between imprisonment on the one hand and minor penalties, such as small fixed fines or cautions and discharges, on the other. Many of these involve the offender remaining in the community but being restricted in the exercise of his rights and liberties. The terminology may differ from country to country, but sentences such as community service, compensation orders and probation with strict conditions attached to it are being imposed increasingly in many countries, whilst highly restrictive sentences to be served in the community, such as house arrest and various forms of electronic monitoring, are often discussed and at least occasionally implemented. Sanctions implemented in the community are also imposed indirectly. Thus conditional release from prison results in many persons formally sentenced to imprisonment serving large parts of their sentences under some form of supervision in the community. Programmes designed to divert persons accused of having committed offences from the criminal justice system may have the same effect. The procedure which is often followed is that persons who would otherwise have been charged with crimes have charges against them withdrawn on condition that they accept restrictions on their conduct whilst remaining in the community. The growing use of community-based sanctions and measures imposed in these various ways has led to the fear being widely expressed that it will cause a widening of the penal net and a resultant increase in state-sponsored social control. 2 It is claimed that Foucault's pessimistic vision 3 is being realized. As Foucault predicted, society as whole is becoming a giant

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Professor of Law and Research Associate Institute of Criminology, University of Cape Town, South Africa. I am indebted to Otto Lagodny, Emily Silverman, Andrew von Hirsch and Lucia Zedner for their helpful comments. The support of the Alexander von Humboldt Foundation and the Human Sciences Research Council, and the hospitality of the Max Planck Institut far auslAndisches und internationales Strafrecht in

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See most prominently, S. Cohen, Visions of Social Control (Cambridge 1985); and D.R. Gordon, The Justice

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Juggernaut(New Brunswick 1991). M. Foucault, Disciplineand Punish: The Birth of the Prison (Harmondsworth 1977).

Freiburg is gratefully acknowledged.

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carcereal archipelago in which the discipline which characterized prisons is reproduced by 4 sanctions implemented in the community. Supporters of community sanctions have not often addressed this deep-seated suspicion directly. Typically, they have held that, notwithstanding their potential dangers, community sanctions should be supported as an alternative to the greater evil of imprisonment. They have also argued strongly that public participation in the implementation of community sanctions improves the criminal justice system as a whole by increasing public confidence in it, whilst at the same time facilitating the social integration of offenders by the reestablishment of social informal bonds. More recently, in an influential book, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System, Morris and Tonry 5 have argued that what they term intermediate punishments need to be developed, even if they will not serve to reduce the prison population and even if they will widen the penal net. 6 In Morris and Tonry's view such intermediate punishments are needed specifically for dealing with offenders for whom imprisonment is too harsh a punishment but for whom ordinary probation is too lenient. Many, if not all, 7 of the intermediate punishments which they propose will be implemented in the community. Probation, of course, is also implemented in the community. However, the authors regard only 'intensive probation' as sufficiently punitive to qualify as a(n intermediate) punishment. The distinction they draw is difficult to extend beyond the USA, because the degree of intervention involved in the supervision of a probation order usually varies along a continuum from strict to virtually non-existent. Moreover, it is not possible to assume that merely because probation is traditionally held to be a therapeutic measure, it does not contain potentially penal elements which may infringe the fundamental rights of the person ordered to undergo it. In addition, there is a widespread tendency to increase such supervision and to emphasize that probation is a form of punishment undergone in the community rather than a measure designed exclusively to assist the individual. 8 Even where this shift in rhetoric has not taken place it should be recognized that restrictive conditions may place a heavy burden on an offender subject to a probation order, who may well perceive them as a form of punishment. In their analyses of the rise of community sanctions, critics, from Foucault onwards, have concentrated on the potential extension of restrictive controls over the individual which may be brought about by community sanctions. They have tended to ignore the fact that in modem penal systems these disciplinary strategies operate within what is still a predominantly

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5. 6. 7.

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S. Cohen, 'The Punitive City; Notes on the dispersal of Social Control' 3 Contemporary Crises (1979) pp. 339-363. See, however, the critique of Cohen's analysis by A. E. Bottoms, 'Neglected Features of Penal Systems', D. Garland and P. Young, eds., The Power to Punish (London 1983). Bottoms argues convincingly that Cohen overestimates the significance of disciplinary punishments by paying insufficient attention to the role of relatively non-interventionist sanctions such as the fine in modern penal systems. N. Morris and M. Tonry, Between Prison and Probation. Intermediate Punishments in a Rational Sentencing System (New York 1990). N. Morris and M. Tonry, op. cit., p. 159. They also deal in detail with fines which can be regarded as community sanctions to the extent that their imposition and collection entail a degree of activity in the community. For the more complex systems of day fines coupled with staggered payments, this may be the case. See the definition of 'community sanctions and measures' in footnote 42 below. In England this development was made explicit by the 1991 Criminal Justice Act which recognized probation as a sentence and therefore as a form of punishment, thus giving it a status which it had not had before. See A. Ashworth, Sentencing amid Criminal Justice (London 1992) p. 259.

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legalistic judicial framework. 9 It is important not to overlook the legal aspect. Law is an inherent element of all aspects of penality and therefore part of the culture which defines the limits of this sphere of social life. In the recent past important attempts have been made, in Europe in particular, to develop standards which would spell out directly the limits to which community sanctions should be subject. The various international instruments which have resulted from this process do not deal with intermediate sanctions in the same way, nor do they define the object of the concem in an identical fashion. However, there are significant areas of overlap and to this extent they represent an emerging international consensus. The extent to which these instruments have the force of law is still uncertain. 10 Therefore, it makes sense first to consider briefly the general legal principles which may be applicable to community sanctions before turning to the subject of the status of the new sets of rules and their importance for the development of specific legal standards for community sanctions. 2. GENERAL RESTRICTIONS That there are legal standards which sanctions generally must meet is indisputable. These standards relate both to the substance of the sanctions and to whether their imposition is proper in specific cases. 11 They are found in international human rights law 12 and also in the complementary standards of national legal systems. 13 The most common form that such standards take is an absolute prohibition of cruel and unusual or inhumane or degrading forms of punishment. To take a single well-known example, the European Court of Human Rights has ruled 14 that a sentence of corporal punishment is 'degrading' and that it therefore infringes article 3 of the European Convention on Human Rights which provides that '[no] one shall be subject to torture or to inhuman or degrading treatment or punishment'. Such an

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10. 11.

12. 13. 14.

D. Garland, Punislinent and ModernSociety (Oxford 1990) p. 167. See also D. Nelken, 'Discipline and Punish: Some Notes on the Margin' 28 The Howard Journal (1989) pp. 245-255, who makes the important point that both Cohen and Bottoms (see footnote 4 above) have overlooked the significance of the fusion of juridical and disciplinary modes of control. Such fusion may arise both within and outside the criminal justice system when offenders or welfare recipients 'contract' with the authorities to behave in particular ways. The use of the legal form influences the relationship between the parties in ways which have yet to be explored fully. See 3. below. The concern here is with the acceptability of specific types of sanctions and their implementation, rather than with the wider question of under what circumstances it is appropriate to use the criminal sanction as a measure of social control. As to the latter, see the classic work of H. L. Packer. The Limits of the Criminal Sanction (Stanford, 1968). See Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights. Perhaps the most influential example, amongst many, is the eighth amendment to the Constitution of the United States of America which prohibits the infliction of 'cruel and unusual punishment'. The same phrase was used in the English Bill of Rights of 1688. In Tyrer v. United Kingdom (1979-80) 2 EHRR 1.

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interpretation of an international instrument can have an impact far beyond its formal boun15 daries. There is also the possibility that a particular form of punishment may not be prohibited entirely, but that these standards may limit the manner in which it is applied. The most prominent modem examples are restrictions on the power of the state to determine how prisoners should be treated. Such restrictions are underpinned by internationally accepted human rights norms which are based on the idea that the essential human dignity of all people, even those 16 who are being subjected to punishment, must be protected. There are general legal standards for deciding whether the imposition of a particular sanction, which is acceptable in principle, is appropriate for a particular offence. Such standards exist, notwithstanding the fact that most legal systems allow the legislature or the courts a wide discretion in this regard. Typically such standards have developed to regulate the most drastic punishments. Thus, for example, the Supreme Court of the United States of America has held that the death sentence is cruel and unusual as a punishment for rape, not because the sentence of death is inherently cruel and unusual but because it is grossly disproportionate to the offence committed. 17 In other jurisdictions the principle of proportionality is invoked directly. In Germany, for example, the Federal Constitutional Court has held that the sentence of life imprisonment for murder is proportionate to the harm caused and therefore constitutional. 18 It follows that for most lesser offences only a lesser sentence would be ac19 ceptable in terms of the principle of proportionality. The restrictions outlined thus far derive from the most basic of all justifications for curbs on the ability of the state to impose sanctions, that is the general need to restrict and regulate the power of the state. This is recognized in a wide variety of provisions of constitutional and international law, which go beyond the explicit prohibition of cruel and unusual punishments. Thus the power of the state to punish can also be restricted by specific constitutional guarantees such as the freedom of religion and, subject to exceptions, the prohibition against forced labour. More widely, the complex requirements of the principle of legality, which is implicit in the notion of the Rechtsstaat, can create restrictions both on the punishment im15. In the case of corporal punishment the European decision has influenced in recent years the interpretation that constitutions of Zimbabwe and Namibia, which are framed in almost identical terms to the European Convention, also outlaw corporal punishment. For Zimbabwe, see S v. Ncube; S. v. Tshuma; S. v. Ndlovu 1988 (2) SA 702 (ZSC) at 719B where Gubbay JA remarked: 'But perhaps the most important decision is that of the European Court of Human Rights in Tyrer v. United Kingdom .... for it was concerned directly with art. 3 of the European Convention of Human Rights - a provision worded virtually identically to s. 15(1) of the Constitution of Zimbabwe.' For Namibia see ex parte Attorney-General, Namibia: in re Corporal Punishment by Organs of State 1991 (3) SA 76 (NmSC) 77 at 87 where Mahomed AJA noted the similarity of, inter alia, the European Convention to the Namibian constitution and referred with approval to the decision in Tyrer's case. 16. G. Kaiser, 'Human rights in the enforcement of sanctions involving deprivation of liberty' 28 International Annals of Crimitology (1990) p. 152; A. Ashworth, op. cit., p. 74. 17. Coker v. Georgia 493 U.S. 584 (1977). 18. BVerfGE 45, 187. 19. Thus, for example, a German court has held, in the context of a request for extradition, that a sentence of thirty years imprisonment for exporting 20 kilograms of hashish is unacceptable in terms of the German constitution: OLG KbIn decision of 13 February 1990 reported in A. Eser, 0. Lagodny and P. Wilkitzki, eds., Internationale Rechtshilfe in Strafsachen Rechtsprechungssammlung 1949-199Z 2 ed. (Freiburg im Breisgau 1993) U 187. See also Recommendation R(92) 17 of the Council of Europe on Consistency in Sentencing which was adopted on 19 October 1992. Article 4 of the appendix which forms the substantive part of these Recommendations states: 'Whatever rationales for sentencing are declared, disproportionality between the seriousness of the offence and the sentence should be avoided.'

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posed, for example that legal certainty requires that the nature and the duration of the punishment should be specified, and on the procedures to be followed in its implementation. The related principle of minimum intervention which 20underlies the criminal law as a whole is also important in the protection of individual liberty. The Rechtsstaat, together with the equally general protection which many legal systems offer explicitly to human dignity, can give positive indications of what is required of punishment. Thus, for example, it has been argued that while modem western constitutions do not prescribe a specific purpose for punishment, and in fact allow a mixture of purposes, they are particularly compatible with a communicative theory of punishment which treats the offender as a rational actor rather than a mere object of punishment. 2 1 A positive legal criterion is therefore that punishment should seek where possible the constructive interaction of the of22 fender in order to enable him to accept responsibility for his own actions. To what extent can general legal standards for the exercise of the power of the state in the sphere of punishment be applied to community sanctions? Before attempting to answer this question directly it will be useful to consider the various sets of international rules which have attempted to specify some of the possible limitations. 3. INTERNATIONAL INSTRUMENTS In the development of the new international instruments for setting standards for community sanctions, history has been repeated almost self-consciously. The first such standards, the Standard Minimum Rules for the Implementation of Non-Custodial Measures involving the Restriction of Liberty (the Groningen Rules), were drawn up at a meeting of experts in Groningen in October 1988 under the auspices of the International Penal and Penitentiary Foundation, a non-governmental organization. The IPPF is the successor to the International Penal and Penitentiary Commission which in the 1920's developed standards for the treatment of prisoners. These standards were conveyed to the League of Nations in the 1930's and subsequently formed the basis for the 1955 United Nations Standard Minimum Rules for the 23 Treatment of Prisoners. Helge Rtstad, the President of the IPPF, has explained that, as in the period before the Second World War, the explicit intention of the IPPF was to influence international development of international rules. 24 The aim was also 'to promote the international acceptance by the United Nations of such rules [on non-custodial sanctions] as analogous and complementary to the United Nations Standard Minimum Rules for the Treatment of Prisoners'.25 The work of the IPPF did have the desired effect, for, at more or less the same time as the IPPF 20. For a useful exposition of the application of the principle of the Rechtsstaat and of minimum intervention (das Subsidaritatsprinzip) to the development of new penal forms, see H. Schch 'Empfehlen sich Anderungen und Erganzungen bei den strafrechtlichen Sanktionen ohne Freiheitsentzug?' Verhandlungen des Neunundfunftigsten Deutschen Juristentages (Hannover 1992) C 41-42. 21.

H. Jung, Sanktionensysteme und Menschenrechte (Bern 1992) pp. 21-23, 95.

22. D. Rdssner, 'Autonomie und Zwang im System der Strafrechtsfolgen', in G. Arzt et al., eds., Festschriftftir Jirgen Baumann (Bielefeld, 1992) pp. 269-279. H. Schoch, loc. cit., C 42. 23. W. Clifford, 'The Standard Minimum Rules for the Treatment of Prisoners' 66 American Journal of InternationalLaw (1972) pp. 232-236. 24. H. Rostad, preface to International Penal and Penitentiary Foundation, Standard minimum rules for the implementationof non-custodialmeasures involving restrictionof liberty (Bonn, 1989) p. 7. 25. Ibid.

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was producing its rules, organs of the United Nations were working on international standards for non-custodial measures. Following a recommendation of the Economic and Social Council of the United Nations that the Secretary-General study the question of alternatives to imprisonment with a view to the formulation of basic principles, such standard minimum rules were drafted by experts of the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders. The Tokyo Rules, as they came to be called, were presented to the Eighth United Nations Conference on the Prevention of Crime and the Treatment of Offenders in Havana, Cuba in September 1990. The Havana Conference recommended to the General Assembly of the United Nations that it adopt the new Rules. In December 1990 the General Assembly duly adopted by consensus the United Na26 tions Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules). The history of the Tokyo Rules is the history of a careful process of international consensus building. In determining the legal significance of these Rules this history of emerging consensus is important, for, as in the case of the United Nations Standard Minimum Rules for the Treatment of Prisoners, their status in law is somewhat ambiguous. The Tokyo Rules are clearly not an international treaty which is binding on the signatories and which must therefore be enforced directly in municipal law. On the other hand, this does not mean that the Tokyo Rules can be assumed to have no legal significance at all. Their unanimous adoption by the Havana Conference and subsequently by the General Assembly of the United Nations are powerful indications that they set standards to which nations aspire. An important question in relation to the legal status of the Tokyo Rules is whether they have the status of customary international law. The answer is of significance, for customary international law can be used to interpret general principles of international human rights law or of constitutional law. 27 Unfortunately, the standards for the recognition of customary international law are disputed. The traditional view is that 'general practice of states which is accepted and observed as law, i.e. from a sense of legal obligation, builds customary international law' 28 However, in the sphere of human rights standards, the emphasis on general practice has been somewhat reduced and increased importance attached to opiniojuris, as expressed in the statements of governmental representatives to international organizations and in resolutions of the General Assembly. 2 9 Thus Meron has noted, in the context of human rights, that '[t]he passage of norms agreed upon in international conferences into customary law through the practice, including the acquiescence, of states constitutes a common, generally accepted method of building customary international law' .30 However, he warns against the dangers of creating 'instant' international law where the circumstances do not justify it. 3 1 Although the Tokyo Rules may formally meet this emerging standard of customary international law based on opiniojuris, the content of the specific Rules demands closer analysis before a conclusion can be drawn about their status. 26. General assembly Resolution 45/110. For a summary of this history, see the introduction to the United Nations Crime Prevention and Criminal Justice Branch, Commentary on the Standard Mininum Rules for Non-CustodialMeasures (Vienna 1993) pp. 3-4. 27. Customary international law is recognized as national law in most countries. For the German position see article 25 of the Grundgesetz and the commentary of H. D. Jarass and B. Pieroth (2nd ed., Munich 1992) marginal note 2 to Article 25. 28. T. Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford 1989) p. 1. 29. T. Meron, op. cit., p. 107. 30. T. Meron, op. cit., p. 87. 31. Ibid.

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In determining the legal status of the Tokyo Rules the parallel with the United Nations Standard Minimum Rules for the Treatment of Prisoners is a useful guide. These Rules have been in existence for much longer and therefore have had time to garner international recognition. Such recognition has indeed been forthcoming in the writings of leading jurists, 32 in the recognition granted to them indirectly in a number of United Nations instruments 33 and in their citation by courts in countries as diverse as the United States of America, 34 Switzerland 35 and South Africa. 36 Regional standards, such as the European Prison Rules of the Council of Europe 37 have developed out of the earlier United Nations Rules and are complementary to them. The recognition which the European Prison Rules have received contributes to the view that they reflect at least a regional international consensus. This in turn strengthens the case for legal status of the more basic United Nations Rules. Even so, the extent to which specific rules of the United Nations Standard Minimum Rules for the Treatment of Prisoners can be regarded as legally binding varies according to the content of the rule concerned and the degree of specificity with which it is framed. In his book, The Treatment of Prisonersin InternationalLaw, Rodley has summarized the position: 'Although not every rule can constitute a legal obligation, it is reasonably clear that the SMR can provide guidance in interpreting the general rule against inhuman or degrading treatment or punishment. Thus serious non-compliance with some rules or widespread non-compliance with some others may well result in a 38 level of ill-treatment sufficient to constitute violation of the general rule.' There are good reasons for regarding the status of the Tokyo Rules as broadly similar to that of the United Nations Standard Minimum Rules for the Treatment of Prisoners, for although the former have been in existence only since 1990 and there has been less time for academic writers to comment and for courts to pronounce on their status, the international consensus surrounding them is impressive. However, when the individual rules are analyzed it soon becomes clear that large sections of the Tokyo Rules were drafted not only to establish legal standards for the imposition and implementation of community sanctions but also in order to promote a specific penal policy, the use of non-custodial measures as alternatives to imprisonment. 39 Not only is the concept, 'non-custodial sanction', wider than 'community sanction', but at least in part the Tokyo Rules are designed to propagate a penal policy rather than to set legally binding standards. The provisions have therefore to be analyzed closely to determine their legal status. Where the Tokyo Rules do refer specifically to 'legal safe-

32. See, for example, the comment of H. Schuler-Springorunm Strafvollzug im Obergang. Studien zum Stand der Vollzugsrechtslehre (Gottingen 1969) p. 69, that they represent an 'Ausdruck intemationalen Rechtsbewusstseins'. 33. See, for example, the preamble to the Basic Principles for the Treatment of Prisoners (General Assembly resolution 45/11 of 14 December 1990) which recognized the 'great value and influence in the development of penal policy and practice' of the Standard Minimum Rules for the Treatment of Prisoners. 34. Lareau v. Manson 507 F Supp I177 (1980). 35. BGE (1976) 102 Ia 279 in the context of a reference to the European Prison Rules. 36. S v. Staggie 1990 (1) SA 669 (C). 37. The current version is the European Prison Rules Recommendation No. R (87)3 adopted by the Council of Europe on 12 February 1987. 38. N.S. Rodley, The Treatment of Prisonersunder InternationalLaw (Oxford 1987) p. 222. 39. Rule L.l.

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guards', 40 they are couched in relatively general terms. The conclusion is that only some of the Tokyo Rules may be regarded as being capable of achieving the status of customary international law. In many instances these rules are phrased so widely that they can be expected to exercise only limited influence. The Groningen Rules, in contrast, are much more focused. They are not intended to promote the increased use of non-custodial sanctions. Their sole purpose is the setting of standards. They do not deal with all non-custodial sanctions, but only with the implementation of those involving a restriction of liberty. 4 1 This means that the Groningen Rules concentrate closely on the most important problems which are likely to arise in respect of community sanctions. The legal status of these Rules is, however, doubtful. Unlike the Tokyo Rules they have not been approved by representatives of governments. Instead they represent the collective views of the experts associated with the IPPF. Legally speaking, they can be viewed, at best, as supplementary material where the Tokyo Rules of the United Nations are silent. Fortunately, there is a third body of rules which operate in the same sphere and cover much of the same ground 42 as the Groningen Rules, but with more authority. These are the European Rules on Community Sanctions and Measures which were adopted by the Council of Europe after a long consultative process in November 1992.4 3 In their case the parallel to the European Prison Rules is deliberate and very strong. Like the Prison Rules they are not a treaty and therefore cannot be regarded as directly binding international instruments. Nevertheless, the official commentary to the Rules notes that '[t]he aim pursued is ... to define a body of European law for the application of community sanctions and measures...'44. These Rules too are the expression of a regional international consensus and therefore can be expected to have considerable indirect legal impact in Europe and beyond. 4. LEGAL LIMITS APPLIED TO COMMUNITY SANCTIONS 4.1. The nature of the sanction 4.1.1 Absolutely prohibitedsanctions In contrast to specific penalties such as capital or corporal punishment, where it must simply be decided whether or not to allow their use, community sanctions cover a wide range of restrictions and compulsions and therefore require the development of general guidelines

40. The heading to Rule 3. However, some other rules also contain legal standards. See, for example, Rule 11 which deals with the duration of non-custodial measures and Rule 14 which deals with disciplinary matters. 41. General Introduction to International Penal and Penitentiary Foundation, op. cit., p. 18. 42. The glossary which is contained in the Appendix to the Rules explains: 'The term 'community sanctions and measures' refers to sanctions and measures which maintain the offender in the community and involve some restriction of his liberty through the imposition of conditions and/or obligations, and which are implemented by bodies designated in law for that purpose. The term designates any sanction imposed by a court or a judge, and any measure taken before or instead of a decision on a sanction as well as ways of enforcing a sentence of imprisonment outside a prison establishment. Although monetary sanctions do not fall under this definition, any supervisory or controlling activity undertaken to secure their implementation falls within the scope of the Rules.' 43. Recommendation No. R (92) 16 adopted by the Council of Europe on 16 November 1992. 44. Commentary to European Rules on Community Sanctions and Measures p. 41.

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against which individual sanctions can be tested. The problem of setting limits in the light of the variability of community sanctions has been addressed at the level of ethical principle by von Hirsch who proposes that the general limit should be determined by what may be regarded as the 'acceptable penal content' of the sanction. 45 Von Hirsch's point of departure is that community sanctions, like other forms of punishment, both deprive and censure. However, they do so in a way which is designed to communicate a sense of shame to the offender, not merely to humiliate him. 46 Sanctions should therefore 'be of the kind that can be endured with self-possession by persons of reasonable fortitude'. 4 7 To this end, they should be compatible with the human dignity of the offender, who is then in the position to reflect about the reason for the punishment and either to reject or, it is hoped, accept that he has transgressed. Sanctions served in the community are regarded as generally being particularly suitable for stimulating this process. This view is echoed by the preamble to the European Rules on Community Sanctions and Measures which emphasizes the value of the offender remaining 'in a position to continue to exercise choice and assume his social responsibilities'. How can community sanctions be identified which have the positive characteristic of stimulating insight and which do not have a penal content which is unacceptable? An interesting example of such a fundamental evaluation is Sch6ch's analysis of the sanctions other than imprisonment which existed in the German Democratic Republic. It was conducted with a view to seeing whether these sanctions would be acceptable in terms of the fundamental legal values of the (expanded) Federal Republic of Germany. 48 Schfch found that in theory at least the Penal Code of the GDR had placed particular emphasis on compensation, that this was compatible with the (West) German notion of communicative punishment and that it could therefore be used as a model for further German developments. What was not acceptable were sanctions which required forms of re-education which amounted to disregard of individual dignity, in which the offender was forced, for example, to express publicly sentiments which he might not hold. Absolute limits can also be sought in fundamental principles of international human rights law. Thus Rule 21 of the European Rules provides that '[n]o community sanction or measure restricting the civil and political rights of an offender shall be created or imposed if it is contrary to the norms accepted by the international community concerning human rights and fundamental freedoms' and Rule 22 adds that '[t]he nature of all community sanctions ... shall be in line with any internationally guaranteed human rights of the offender'. However, as the official commentary to Rule 22 notes, these are general, hold-all provisions which do not indicate which rights may under no circumstances be infringed by a sanction. More detailed indications of rights which may not be infringed by community sanctions may be found in national legal systems which have specific constitutional provisions which are not subject to statutory derogation. Thus German legal scholars49 are in agreement that a court could not, for example, attach a condition to a suspended sentence, compelling a de45. A. von Hirsch, 'The Ethics of Community-Based Sanctions', 36 Crime and Delinquency (1990) pp. 163-173. 46. See also the notion of reintegrative shaming developed by J. Braithewaite, Crime, Shame and Reintegration (Melbourne 1989). 47. A. von Hirsch, loc. cit., p. 167. 48. H. Sch6ch, loc. cit., C43- 53. 49. F. Streng, Strafrechtliche Sanktionen. Grundlagen und Ainvendung (Stuttgart 1991) p. 74; W. Stree in Schonke/Schrdder, Strafgeserzbuch Koinmentar, 24th ed. (Munich 1991) marginal notes 22- 26 to § 56b and marginal notes 8-10 to § 56c; Dreher/Trondle, Strafgesetzbuch Kurzkommentar, 45 ed. (Munich 1991) marginal notes 2-5 to § 56c.

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fendant to marry the mother of his child as this would infringe the constitutional protection of the sanctity of marriage; 50 or to attend church services regularly, as this would infringe the right to freedom of religion; 5 1 or order him not to join a particular society, as this would in52 fringe the right to freedom of association. In systems where constitutional standards are less clearly enunciated courts have a wider discretion. Thus it would appear that in the somewhat anachronistic sentence of binding over English courts can set almost any condition they choose. For example, in the case of Williams53 the English Court of Appeal held that an order compelling a British citizen to leave the country for five years would in principle be acceptable. These powers have, however, been criticized, not only because the orders which may be imposed infringe upon fundamental rights, by for example allowing deportation where the legislation dealing specifically with deportation would not, but also because the wide discretion which they allow the sentencing court may lead to inconsistency and unfairness. 54 Even constitutions which guarantee fundamental rights do not necessarily guarantee that these will not be infringed by orders which form part of community sanctions. This is particularly true in the United States of America where a recent study has shown that courts routinely and without specific statutory authority exercise a discretion to impose conditions of probation which violate several such constitutional rights, including freedom of association, freedom from search and seizure and, most controversially, the privacy-based right to have children. 55 In this system it seems that the courts have not recognized absolute limits on the substance of such orders, although they have held that when a constitutional right is affected 56 the sentence should be reviewed more strictly than would otherwise be the case. 4.1.2 Prohibitedpurposes Can the use of community sanctions which infringe fundamental constitutional rights be limited by allowing them to be imposed only for specific purposes? Thus, for example, the probation order in the United States has traditionally been regarded as having only rehabilitative and protective aims. An order imposed to meet the wider retributive purpose of punishment could therefore be outlawed. More narrowly, but following the same reasoning, the German Penal Code has laid down that the conditions (Weisungen) which it may impose on a person whose sentence has been suspended, must serve to assist a convicted person who

50. Art. 6 of the German Grundgesetz. An alternative basis could be sought in Article 12 of the European Convention on Human Rights which also deals with the right to marry. A further argument is that being compelled to marry infringes the human dignity of the offender concerned. 51. Art. 4 of the German Grundgesetz. 52. Art. 9 of the German Grundgesetz. 53. (1982) 4 CR. App. R. (S) 239. 54. A. Ashworth, op. cit., p. 249; D.A. Thomas, 1982 Criminal Law Review, p. 763. 55. For a thorough review of the range of restrictive probation orders, see S.L. Arthur, 'The Norplant Prescription: Birth Control, Woman Control or Crime Control?', 40 UCLA Law Review (1992) pp. 1-101. 56. State v. Friberg421 N.W. 2d 376, 379 (Minnesota Court of Appeals, 1988); People v. Keller 143 Cal. Rptr. 184, 192 (California Court of Appeals, 1983); United States v. Patterson, 627 F. 2d 760, 761 (5th Federal Circuit 1980).

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needs such help not to commit further offences. No other purpose is allowed. 57 Both the American and German restrictions of purposes have been used to strike down sanctions imposed by sentencing courts. The former has been used to set aside a requirement that a woman refrain from becoming pregnant during the period of probation, 58 while the latter has been applied, inter59alia, to set aside an order that the convicted offender pay the costs of the legal proceedings. Although on occasion they might prevent excesses, limitations based narrowly on the purpose of the sanction are not unproblematic. A fundamental insight of modem penology has been that even where sanctions are not designed to be punitive they may, particularly when viewed from the perspective of the offender, have a distinctly punitive effect. Moreover, their impact may be harsher than justified by the offence itself, thus undermining the power of the 60 principle of proportionality to set upper limits on sentences. Labelling a sanction a rehabilitative or preventive measure does not change its essence. However, this elementary insight is still often overlooked. Thus, for example, the German Federal Constitutional Court has continued to hold that because community service is imposed as part of an order which suspends a term of imprisonment on probation, it ceases to be a punishment. 6 1 This device enabled the Court to deny that community service is a form of punishment which might be excluded by the constitutional prohibition on forced labour for all persons except those deprived of their liberty by a court sentence. 62 It is also particularly dangerous where, as in the United States, there are apparently no absolute restrictions on the content of probation orders; with the result that for non-retributive purposes a sanction can be imposed which severely infringes fundamental constitutional rights. 4.1.3. Partiallyprohibitedsanctions Legal constraints on the community sanctions which may be imposed do not necessarily have to be absolute prohibitions. They may also be cast as restrictions on a particular aspect or characteristic of an otherwise acceptable sanction. In some cases this limit may merely have to do with the length of the period for which the sanction is to implemented. Without such a

57. 'Die Auswahl der Weisungen ist zunachst durch ihre Funktion begrenzt.' W. Stree, loc. cit., marginal note 6 to § 56c. A similarly restrictive interpretation is given to the scope of instructions (Auflagen) which in terms of § 56b of the German Penal Code may also be attached to sentences suspended on probation. In juvenile justice restrictions on Weisungen which do not serve educational purposes are common: F. Schaffstein and W. Beulke, Jugendstrafrecht,12th ed. (Gottingen 1992) pp. 77-80. 58. Rodriquez v. State 378 So. 2d 7 (Florida District Court of Appeals) discussed by S. L. Arthur, loc. cit., pp. 56-57 and 66-67. The objective of preventing the woman, who had a long history of child abuse, from committing similar crimes in the future could be met by denying her custody of them. 59. W. Stree, loc. cit., marginal note 8 to 56c; BGH 9 365; 1956 NJW 1887. 60. The setting of a 'retributive maximum' is regarded as a virtue of the principle of proportionality even by some of those who do not accept that punishment should invariably be proportionate to the offence. See M. Cavadino and J. Dignan, The Penal System. An Introduction (London 1992) p. 57. Other critics, most notably J. Braithwaite and P. Pettit, Not Just Deserts. A Republican Theory of Criminal Justice (Oxford 1990) pp. 102-103, also argue for restrictions on maximum sentences but would derive these from the need to protect citizens from a too powerful criminal justice system, which in turn is derived from the wider ideal of parsimony (minimum intervention) which they endorse. For a response to the approach of Braithwaite and Pettit, see A. von Hirsch and A. Ashworth, 'Not Not Just Deserts' 12 Oxford Journalof Legal Studies (1992) p. 88. 61. BVerfG 1991 NJW 1044. For a critical comment see W. Stree, loc. cit., marginal note 15 to 56b. 62. Article 12(3) of the Grundgesetz.

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constraint, the period may not only be disproportionate to the offence, 6 3 but it may impose a 64 burden on the offender which cumulatively is absolutely unacceptable. A more subtle limitation is to be found in the notion that specific sanctions have a definite penal content and that once this content has been specified there is a prohibition on deliberately adding to it. A prime example of a sanction which does have such a limitation is imprisonment. It is expressed in the maxim that offenders are sentenced to imprisonment as punishment not for punishment. This means that the punitive element of imprisonment lies in the deprivation of liberty and that, in principle at least, additional deprivations may not be inflicted on inmates. This principle has been very influential and has led in many countries to the abolition of sentences to imprisonment 'with hard labour' or with other specified, deliberately punitive regimes. For sentencing judges this has had the important practical consequence that all sentences of imprisonment can be regarded as formally equal and that it is possible for the court to focus solely on the appropriate length of the prison term in relation to the offence. Of course, in practice the possibility remains that offenders may be sent to institutions which vary significantly in the extent to which they place restrictions on the inmates. Open or closed prisons, for example, differ greatly in this respect. However, the myth of the equality of the punitive content is maintained by focusing on the deprivation of liberty. In the case of community sanctions it is often harder to define the core punitive element than it is in the case of imprisonment. In part this is because of the sheer diversity of possible sanctions and orders. Such diversity may itself be a reason for having a numerus clausus of sanctions, but even within the framework of recognized community sanctions there may be difficulties. An example which has been given some consideration in this regard is the sentence to community service. Most writers now recognize that notwithstanding the rehabilitative objective such a sentence may have, it has a punitive element. In practice this means that the focus in such a sentence is primarily on the element of labour implicit in the 'service', and sentences are typically determined in terms of the number of hours of service which must be performed. As far as the nature of the work is concerned, the outer boundary is set by the test of 'acceptable penal content' which would imply that the work should not be of a kind which is contrary to the human dignity of the offender. However, the question remains whether, subject to this outer limit, the sentencing authority may prescribe a form of work which is particularly onerous, in order to increase the punitive content of the sentence. The answer would appear to be in the negative, for the core punitive element of the sanction of community service lies in having to work for the number of hours specified by the sentencing court rather than in the nature of the work itself.65 There appears to be no simple way of determining that in practice a degree of substantive equality is maintained between two sentences to community service, except to specify that the verdicts should indicate the number of hours of service to be done, and to underpin the sentence with detailed regulations about how

63. See 4.1.5 below. 64. See in this regard H. Sch6ch, Ioc. cit., C 41, who points to the danger of unreasonable demands being made of an offender whose sentence may at first glance appear to be less of an imposition than a prison sentence, without realizing that the cumulative effects of community sanctions may be devastating. See also § 56c I of the German Penal Code which provides that where the court orders specific restrictions which are designed to assist a person whose sentence has been conditionally suspended, not to commit further crimes, such restrictions may not impose any unreasonable demands ('unzwnutbare Anforderungen') on how the convicted person conducts his life. 65. A. Ashworth, op. cit., pp. 267-269.

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precisely those responsible for the implementation of the sentence should determine what work be done and how a failure to perform should be dealt with. The difficulties in determining penal content are even greater in the case of (intensive) probation. As the content of probation orders may vary widely, it is much harder to argue that the time to be served is crucial. A tentative suggestion is that a number of sets of standard conditions be developed and that the penal content of these be weighted in conjunction with the period of time for which the offender is to be subject to probation. However, sentencing courts should retain the power to adjust the conditions and the weighting attached to them to meet specific cases. 4.1.4 The legality of sanctions The example of community service also indicates how difficult it is to apply in the sphere of community sentences the aspect of the general principle of legality which requires all sentences to be stated with precision. The desiderata are stated easily enough: The European Rules provide for this requirement in the first rule of what is described as the legal framework for community sanctions, which states in general terms: 'The definition, adoption and application of community sanctions and measures shall be laid down in law.' 66 Clearly, the intention is that the public should know which punishments may be imposed and what their imposition will entail for the offender. This general provision is underlined by a further rule which requires that the content, the 'conditions and obligations', of the sanction should be specified clearly, as should the consequences of non-observance. 67 The extent to which this requirement will present difficulties will depend on the sanction concerned. For example, a curfew order which specifies that an offender should not leave her house without permission between 6 pm and 6 am is clear, whilst a general order that an offender should behave himself properly is too vague. It is the duty of the sentencing court to determine what the appropriate community sanction is and then to ensure that its conditions and obligations are 'defined by clear and explicit legal provisions' 68 This is best achieved by having a number of pre-defined community sanctions, the details of which are specified in publicly accessible regulations. The less detail there is in such regulations the more detail the court has to put into its sentence. A detailed sentence can meet the requirement of legality as far as a specific case is concemed, but it cannot meet the wider requirement that the potential punishment must be known beforehand. This applies particularly to imaginative new community sentences. A strict adherence to the limits inherent in the principle of legality would probably eliminate the possibility of setting up experimental sanctions prior to the creation of a legislative framework for them. The official commentary on the European Rules recognizes this difficulty and suggests that experiments should be allowed as long as they 'are undertaken in accord with the spirit of the European Rules on Community Sanctions and Measures'. 69 However, there is no provision in the Rules themselves for such an exception. When deciding whether it is

66. 67. 68. 69.

Rule 3. Cf. also Tokyo Rule 3.1. Rule 4. Ibid. P. 48. See also Tokyo Rule 2.4 which speaks generally of encouraging the development of new non-custodial measures.

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appropriate to allow such an experiment one should be conscious of the principled objection and seek to limit the impact of the failure to meet this aspect of the legality requirement. Rule 5 of the European Rules also specifies emphatically that '[n]o community sanction or measure shall be of indeterminate duration'. In so doing it goes further than the general legal principles relating to sentencing which in most jurisdictions allow indeterminate sentences of imprisonment. From the point of view of legal certainty precise sentences are, however, always desirable. By combining, as Rule 5 does, such a requirement with a further requirement that there be a statutory maximum and minimum length of sentence within which the court must operate, the danger of sentences which in their cumulative effect are unacceptably harsh can be eliminated. 4.1.5. Proportionality A strong case can be made for arguing that the imposition of community sanctions, like the imposition of other punishments, should be restricted by the principle that sanctions must not be grossly disproportionate to the offences for which they are imposed. However, in the past the first question which was often asked was whether or not the offence was serious enough to justify a prison sentence. When the answer was no and a community sentence was thought to be appropriate, the offence element was ignored and a sentence based solely on the perceived (rehabilitative) needs of the offender imposed. In more recent times the acknowledgement of the punitive element of the community sentences has led to the recognition that community sentences too must be proportionate to the crime. Prominent exponents of the just deserts philosophy in sentencing have argued that community sentences can be added to a sentencing scale which previously included only imprisonment for periods of varying length. 70 Indeed, certain community sentences may be harsher punishments than short terms of imprisonment and a sentencing scale should reflect such an overlap. Moreover, various community sentences, for example, a number of hours of community service and a period under house arrest, may also overlap in the sense that they may have similar punitive contents. The advantage of a notional scale of punishments with overlaps is that the sentencing authority which has related the offence to a level of seriousness on the scale may then select among two or more penalties that sanction which is most appropriate for the particular offender. This analysis has much to commend it. The recognition that community sanctions have a clear punitive content and that that content must be linked to the seriousness of the offence provides an important safeguard, for it ensures that a more intensive community sentence than is justified by the offence should not be imposed merely because the offender 'needs' it. Legislators and those who impose sentence to consider the penal equivalents of custodial and community sentences and of community sentences inter se, makes them aware of the range of choices which are available. The analysis provides a basis for the development of policy guidelines. Thus it allows a general policy of eschewing custodial sentences or a policy of also trying to find the sentence most suitable for the offender on rehabilitative grounds to be introduced whilst avoiding the excesses which the justice model in sentencing was designed to combat. 70. M. Wasik and A. von Hirsch, 'Non-Custodial Penalties and the Principles of Desert', Criminal Law Review (1988) pp 555-572. See also N. Morris and M. Tonry, op. cit., ch. 3.

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The European Rules 71 and (somewhat less clearly) the Tokyo Rules 72 lay down as first factor in the selection of community sanctions that their nature and duration shall be in proportion to the seriousness of the offence. In the former the only additional factor which is mentioned are the personal circumstances of the accused, whilst the Tokyo Rules refer more generally to 'the personality, the background of the offender, the purposes of sentencing and the rights of victims'. The difficult question is what role these other factors should play. In their book, Between Punishment and Probation, Morris and Tonry advocate an approach in which desert-based proportionality sets rough maximum and minimum limits which would result in sentences which are 'not undeserved'. 7 3 However, within these rough limits they would tolerate a measure of substantive inequality in order to allow sentences which meet the other goals of punishment. A more thorough-going just deserts approach finds this wateringdown of primary principle unacceptable and argues that it adds an unnecessary complication to an already difficult decision, as it does not give any guidance about the extent to which there should be a departure from the primary principle. 74 Particularly problematic from this perspective are decisions to release offenders from prison on condition that they are subjected to some further community sanction, for in these cases it rarely happens that an attempt is made to assess the punitive weight of this substitute sanction. Both approaches agree on the principle that in the sphere of community sanctions there should be some substitutability. In respect of when one sentence should be substituted for another, legal standards do not provide clear limits, but some guidance may be sought from the communicative theory of punishment, discussed above. 75 It is a strength of community sanctions generally that they allow offenders the opportunity to interact with their punishments in a rational way and thus learn from them. It could be argued that to the extent that the doctrine of proportionality allows the sentencing authority a discretion, it should be exercised in favour of community sanctions and, more specifically, in favour of those sanctions which in the particular instance are most likely to encourage this rational learning process. However, in the light of the unsettled state of sentencing law generally, even this vague guideline cannot be elevated to an absolute standard. The problem of proportionality also presents itself in relation to the question of whether the sanction which is originally imposed should make provision for an alternative punishment which will come into effect automatically if the offender should fail to meet the conditions of the original community sentence. In many jurisdictions provision has been made for such a penalty and often the penalty has been a term of imprisonment. The increased desire to have community sanctions and indeed other forms of non-custodial penalties serve as alternatives to imprisonment has led to this practice being re-examined in terms of general principles. These soon revealed two basic flaws in the traditional approach. First, the alternative sentence was often disproportionate to the crime originally committed. Secondly, even if heavier alternative sentences could be regarded as fitting penalties for the original crime plus the

71. 72. 73. 74.

Rule 6. Rule 3.2. N. Morris and M. Tonry, op. cit., pp. 87 ff. A. von Hirsch, 'Scaling Intermediate Punishments. A Comparison of Two Models', in J. M. Byrne, A. J. Lurigo and J. Petersilia, eds., Smart Sentencing. The Emergence of Intermediate Sanctions (Newbury Park 1992) pp. 211-228. 75. See 2 and 4.1.1 above.

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further failure to conform at all with the restrictions of the community sanction, 76 the possibility remained that all but a small part of the community sanction would have been completed with the result that sanction was now disproportionate. For example, if someone had performed ninety-nine of a prescribed hundred hours of community service it would be unfair to punish him as if he not had served a large part of his sentence. The result of this type of principled analysis is reflected in the various rules. The Tokyo Rules provide explicitly that 'the failure of a non-custodial measure shall not automatically lead to the imposition of a custodial measure'. 7 7 Instead an attempt should be made to find a further suitable non-custodial alternative. 78 In this search the doctrine of proportionality must once more play its role in determining what will be the appropriate sentence in the new cir79 cumstances. 4.1.6 Consent of the offender Thus far the emphasis has been on the restrictions on imposing community sanctions which are parallel to those on sentences generally. There is, however, at least one limit which appears to be unique, that is the idea that some or all community sanctions can be imposed only if the offender agrees to, or at least does not actively oppose, their imposition. There is some variation about when and where this limit should be applied. That the consent of the accused is required when charges are withdrawn on condition that he submits to a community sanction, is generally uncontroversial. This is the minimum consent requirement which is set by the Tokyo Rules. 80 Controversy does arise when sentences are imposed in this way, but it is of another kind; whether the consent of the accused is at all a sufficient safeguard to justify the short-circuiting of the entire trial and the sentencing procedures which go with it. There is certainly a case to be made for the proposition that any process which limits the rights of the accused to the extent that a community sanction does, requires some procedural safeguards. These safeguards are necessary, for the consent of the accused may be given for extraneous reasons, such as the desire to avoid a trial because of the unfavourable publicity, for example, or simply because of a pessimistic calculation that the risk of a possible conviction and a prison sentence are not worth running if the alternative is 'merely' submitting to a community sanction. A minimum of judicial supervision is required even if this does cause delays in what is supposed to be an unbureaucratic procedure. 8 1 More difficult is the question of the offender's consent where the community sanction is 76. Itself a doubtful proposition: Cf. European Rule 84 which provides: 'Failure to comply with conditions or obligations attached to the [community] sanction or measure, which may under the legislation in force lead to the modification or the partial or total revocation of the sanction or measure, shall not in itself constitute an offence.' 77. Rule 14.3. See also Rule 86 of the European Rules, which deals in similar terms with what should be done when a community sanction is revoked. 78. Rule 14.4. The last sentence of this Rule concludes: 'A sentence of imprisonment may be imposed only in the absence of other suitable alternatives.' 79. A. von Hirsch, M. Wasik and J. Greene, 'Punishments in the Community and the Principle of Just Desert' 20 Rutgers Law Journal (1989) pp. 609-610. 80. Rule 3.4 provides: 'Non-custodial measures imposing an obligation on the offender, applied before or instead of formal proceedings or trial, shall require an offender's consent'. See also Groningen Rule 9 and European Rule 35. 81. Cf. C. Kelk, 'De vrijheidsbeperkende straf en de rechtspositie van de veroordeelde; een proeve' in Th. van Veen en G. van Essen, eds., Sanctietoepassing.Een nieuwe ordening (Arnhem 1991) p. 68.

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imposed directly as a penalty by the court. The European Rules, which define community sanctions and measures relatively widely, 82 state a requirement of consent in what, at first reading, appears to be absolute terms: 'A community sanction or measure shall only be imposed when it is known ... whether the offender is prepared to co-operate and comply with them.' 83 In reality, the Rule is ambiguous and the ambiguity is not clarified by the official commentary which remarks that '[ijf an offender is not prepared to co-operate and comply with appropriate conditions there would seem to be little point in a court deciding on a community sanction or measure'. 84 Neither the Rule nor the commentary goes as far as completely preventing a court which knows that the offender will not consent, from imposing a community sanction, although they indicate that it would be undesirable for a court to do so. The contrary view is that a community sanction is a sanction like any other and that a court may impose it when it deems it appropriate. If the offender then does not respond, the law dealing with failure to comply must take its course. There is however a middle position. It is well expressed in Rule 9 of the Groningen Rules which provides: 'A non-custodial sanction or measure requiring the active co-operation of the offender shall only be enforced with the consent of the offender.' 85 Some may argue that the term, active co-operation, is still too broad and that in any case the necessity of ensuring the co-operation of the accused is not the only reason for requiring consent. Certainly, the need for consent can be explained on other grounds where specific community sanctions such as community service or referral to an institution for treatment purposes are concerned. In the case of the former, community service and any other sentence which requires the accused to work in the community as an aspect of the sanction, the true barrier is the prohibition found in international conventions and national constitutions on forced labour outside the prison context. Here the consent of the offender is seen as a way of avoiding the infringement of this provision. Whether this is an adequate solution to the problem has been doubted by many scholars, 86 but the practice of allowing a community sanction of labour when consented to by the offender is widely established. An example of a consent requirement related to the latter is to be found in § 56c III of the German Penal Code which requires the consent of the offender to be obtained before an instruction is issued that he must submit himself to therapy or treatment for an addiction, or that he must take up residence in an appropriate home or institution. However, even where the offender consents, it remains the case that the general requirement set by § 56c I of the Code that the instruction should not unreasonably interfere with the offender's life, that is, 87 have an unacceptable penal content, remains in force. The difficulties of obtaining consent which is both informed and truly voluntary are recognized by Rule 3.8 of the Tokyo Rules which outlaws without exception all non-custodial See footnote 42 above. Rule 31. Commentary p. 57. Emphasis added. The next sentence in the same rule refers to consent required for 'any non-custodial measure decided on before or in place of any proceedings or trial', thus providing a clear contrast to the emphasized words. 86. For a summary of the debate, see H. Jung, op. cit., pp. 175-180. When community service was introduced as a primary punishment in France, provision was made to allow an offender to refuse to accept its imposition, in order to avoid coming into conflict with article 4 of the European Convention on Human Rights: F. Zieschang, 82. 83. 84. 85.

Das Sanktionensystemn in der Reformn des franz76sischen Strafrechts im Vergleich mit dem deutschen Strafrecht

(Berlin 1992) pp. 74-76. 87. W. Stree, loc. cit., marginal note 24.

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measures which 'involve medical or psychological experimentation or undue risk of physical or mental injury to the offender'. The prohibition on injury is echoed in the European Rules.8 8 However, the provision dealing with experimentation in the European Rules is less absolute, forbidding only 'medical or psychological treatment or procedures which are not in conformity with internationally adopted ethical standards'. 89 From the official commentary it is clear that the authors of this latter rule foresaw the danger that offenders could be coerced into agreeing to becoming the subjects of medical experiments. This has often been a problem in the prison context, and the same danger of coercion is present where offenders are subject to community sanctions. Nevertheless, the possibility was deliberately left open for experiments to be conducted subject to strict conditions. In the light of the risks to the physical and mental integrity of the offender, the limited advantages which are likely to accrue from such experiments, and the fact that the provision in the Tokyo Rules (which are generally less comprehensive than the European Rules) in this instance is uncompromising, an absolute prohibition would have been justifiable in the European Rules as well.

4.2. The process of implementation Once a community sanction has been imposed and its ambit described in law in accordance with the standards required by the principle of legality, the most important legal limit on the implementation of the sanction has been set. The sanction must be implemented in conformity with what the court or other body which imposed it envisaged. In practice, the matter is not so simple. Unlike a fine which can be paid immediately, the implementation of the sanction involves an interactive process between the person serving the sentence and the authorities enforcing it. In this respect it closely resembles the sentence of imprisonment and it follows that, as in the case of imprisonment, general principles of law have to be developed to guide this relationship. Furthermore, the fact that the process of implementation takes place in the community raises problems, particularly in respect of the position of third parties, which are not of equal significance in the prison context. 4.2.1 Proceduralsafeguards The general limits on the mode of implementation proceed from the assumption that the civil and political rights of the person serving the community sentence shall not be disturbed to a greater extent than specified by the sanction. 9° Experience in the implementation of prison sentences has taught that the rights of persons serving a sentence are best protected by having an effective procedure for dealing with their complaints. It is clear that the applicable legal standards of due process can be implemented in a number of ways. What is required is a procedure which gives the offender who is serving a community sentence effective and speedy redress. The latter is particularly important for otherwise the sentence may be completed before the complaint has been addressed. The various sets of international rules agree that the procedure should be simple and swift 88. Rule 26. 89. Rule 25. The Rule does not refer directly to experimentation, but from the commentary (p. 55) it is clear that it is intended to do so. 90. Groningen Rule 3. This is an application of the general principle of minimum intervention: See Tokyo Rule 2.6.

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and that the tribunal which hears them should be impartial. 9 1 However, they are less clear on how the complaints procedure should best be organized. The European Rules seem to suggest a two-tier system. A complaint about the implementation of a community sanction which relates to a restriction of liberty should be heard by a judicial authority, 92 whilst a complaint about practical questions of implementation shall be dealt with by a complaints authority or body.9 3 In practice such a distinction might be very difficult to draw, as the division between issues of liberty and administrative detail may itself be highly controversial. Nevertheless, one can understand why the attempt is made, for if by the judicial authority is meant the criminal court which imposed the sentence, it might well be impractical for it to deal with every detail of the administration of these sanctions. One solution is to have a specialist judge or court which has the responsibility to supervise all legal aspects of the execution of the community sanction. 94 The model here is the German Strafrollstreckungsrichteror the French juge de l'application des peines who are supposed to play such a role in the implementation of prison sentences. However, there have been criticisms of the practical efficacy of such judges in both countries, 95 and it cannot be assumed that a judge of this type will be able to look after the interests of persons serving community sentences effectively. Nevertheless, the model does have the advantage that it lends recognition to the fact that the implementation phase of the community sentence is as subject to clashes of interests between the state and the offender as the stage at which sentence is imposed, and that it should therefore equally be subject to legal procedural control. The role of a court or a judge becomes if anything even more important when the question of determining whether offenders have failed to fulfil the conditions of their community sentences is considered. There may be difficult factual questions to be decided. Even where an infringement has been shown to exist, the recognition that the community sanction ought not automatically to be replaced by imprisonment, means that a careful decision has to be made whether to impose a (minor) disciplinary penalty for the infringement of the conditions of the community sanction or whether the particular community sanction itself should be set aside and replaced by another community sanction or other penalty. Such a decision clearly affects the liberty of the offender serving the sanction and requires the controls of due process. Once again the precise form that they should take cannot be deduced from general legal principle. However, there is a strong case for saying that the judge responsible for the execution of the sentence would have the background information to determine not only the facts but whether the extent of the offender's failure to observe the conditions of the community sanction justify its being set aside and replaced by another appropriate sentence. 4.2.2 Methods of enforcement It can be expected that many of the disputes about the implementation of community sanctions will relate to methods of enforcement. What are the legal limits on the methods of en91. 92. 93. 94. 95.

Groningen Rules 37 and 38; Tokyo Rule 3.6; European Rules 13-16. Rule 14. Rule 15. C. Kelk, 'De executierechter op komst?' Proces (1992) 254-263. U. Kamman, 'Der Richter als Mediator im Gefangnis; Idee, Wirklichkeit und Moglichkeit', Kriminologisches Journal (1993) pp. 13-25; C. Faugeron, 'France', in D. van Zyl Smit and F. Diinkel, eds., Imprisonment Today and Tomorrow (Deventer 1991) p. 258.

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forcement? In formal terms the answer is easy to state: the means of enforcement are not part of the sanction but a means of implementing it. They should therefore never infringe more on the liberty of the individual serving the community sanction than is necessary to secure his compliance. In practice this may present a problem. For example, it may happen that the supervision of the sentence of house arrest is used as an opportunity to conduct a search which otherwise would not be allowed. 96 However, it is not difficult to argue from first principles that this ought not to be allowed as it unnecessarily imposes a burden which is not part of the primary sanction. All three international standards emphasize that the privacy and the dignity of the offender must be respected into the enforcement process. 97 This may be easier said than done, for inevitably enforcement does require some infringement of the privacy of the offender. The requirement is rather that the infringement should be kept to a minimum than that it should be eliminated entirely. But what of a sanction which can only be enforced by a process which involves significant inroads in the privacy or dignity of the offender? In such an instance the test should be the same as that which should be applied to forms of community sanctions which may be prohibited entirely. 9 8 Does the sanction, when the method of implementation which has to be applied is considered as well, still have an acceptable penal content? This question, which obviously must be asked at the stage of imposition, should exclude sanctions which require unacceptable methods of enforcement. What can be regarded in practice as a significant inroad into the privacy of an offender is harder to determine. Only the Groningen Rules offer some guidance Thus Rule 13 provides: ... Methods of supervision and control which treat offenders solely as objects of control shall not be employed. Nor shall surveillance techniques be used without the offender's knowledge. Third parties shall not be employed for the surveillance of the offender and random checks shall not be carried out at offender's home at night. The commentary to the Groningen Rules explains that this Rule follows from the requirement that the privacy and dignity of the individual must be respected. The sentiments which the Rule expresses are admirable but unfortunately the specific prohibitions which it proposes do not follow automatically from the earlier requirement. It cannot simply be assumed, for example, that all random night checks necessarily and under all circumstances infringe the privacy or dignity of the offender to an unacceptable degree. The same has to be said of electronic monitoring which the commentary on the Groningen Rules regards as being likely to infringe the standards set by the Rules. While electronic monitoring increases the potential for infringements of the privacy and dignity of offenders, it does not necessarily result in such infringements. It is significant that, with the exception of provisions relating to the confidentiality of records, 99 both the European and the Tokyo Rules leave open the question of how the privacy and dignity of offenders can be protected. In this area legal standards can offer only principled guidance to national legislators. This means that attention has to be paid to the details of how, for example, electronic monitoring would function and whether it 96. 97. 98. 99.

D. R. Gordon, op. cit., p. 135. Tokyo Rules 3.9 and 3.11; Groningen Rules 5 and 13; European Rule 23. See 4.1.1 above. European Rules 60-66; Tokyo Rule 3.12. See also Groningen Rules 22-25.

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would in fact pose a larger threat to individual dignity and privacy than human observers 10 0 whose actions may be highly intrusive. 4.2.3. Third Parties Community sanctions bring into focus an aspect of punishment which is often overlooked, namely the impact which they may have on third parties. Although a prison sentence or a fine may affect an offender's family severely, the effect is indirect, as they are not implicated in the enforcement process. In the implementation of some forms of community sanction, such as the supervision of house arrest, the situation is different. In order to cover these instances the international standards also provide that the privacy of offenders' families should be respected. 10 1 However, in practice, it not be possible avoid the enforcement process having some impact on those persons who, for example, live in the same house or use the same telephone as the offender who is being supervised. This impact may increase in conditions of gross overcrowding, where the constant (and unwanted) presence of an offender under house arrest may be difficult to tolerate. The question of principle raised by such infringements is difficult to answer, for while it may be argued that the offender has to accept, within limits, the secondary inconvenience of the supervision process, can the same be said of third parties? The answer may well be no; or at least not to the same extent as an offender, for if no infringement at all were allowed then certain sanctions could not be implemented. Von Hirsch has suggested that a pragmatic approach would be to compel courts to consider the impact on third parties when selecting an appropriate community sentence. 102 A simple and effective legal procedure which allows third parties to object against a community sentence which in its implementation imposes a burden on them, would also assist. However, the fundamental question about what degree of infringement of rights, or even mere inconvenience, third parties may be compelled to accept, has yet to be answered. 4.2.4. The Community A final question in relation to implementation is the role which the wider community should play in the process. In this respect one is confronted with a paradox. Ostensibly, community sanctions are introduced to allow 'the community' to participate more fully in the penal process than they would if the offender were imprisoned or even were executed (for the modern, sanitized form of capital punishment rigorously excludes the public). This sentiment is echoed in the international instruments which encourage public participation in community sanctions. 10 3 In practice though, other, more powerful, legal principles severely restrict the role of the wider community. A deliberate process of public humiliation of offenders is widely regarded as exceeding the bounds of the acceptable penal content and is to be counteracted by efforts to protect their anonymity and thus to safeguard them against stigmatization. The international standards also seek to exclude community volunteers from the supervisory and therefore often punitive aspects of community sanctions (or where they are involved, to 100. A. von Hirsch, loc. cit., p. 165; T. Weigend 'Sankionen ohne Freiheitsentzug', Goldtdammer's Archiv fir Strafrecht, (1992), p. 363. 101. Tokyo Rule 3.11; Groningen Rules 5 and 13; European Rule 23. 102. A. von Hirsch, ioc. cit., pp. 171-172. 103. Tokyo Rules 17 and 18; European Rules 44-45; Groningen Rule 34.

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keep them under the strict control of the responsible state authorities). 104 The resolution to the paradox of community involvement is that public participation is thought to be desirable in the rehabilitative but not the punitive aspects of the community sanction. It remains doubtful whether these can be separated. The result will be that outside the involvement of volunteers with specific skills the call for community involvement will remain limited to individuals and groups who have special skills to offer and who are able and willing to work within the framework of legal constraints. From the perspective of protecting the individual serving a sentence in the community this may not be undesirable. 5. CONCLUSION There is no doubt that compared to the law relating to imprisonment, the legal principles relating to community sanctions are relatively underdeveloped. Amongst the judgments of the highest national courts one looks in vain for decisions such as the Lebach 10 5 judgment in Germany, Cooper v. Pate1 06 in the United States of America or Raymond v. Honey 10 7 in England, which have articulated general principles for the development of prison law. Where the courts have attempted to address issues of principle in the context of community sanctions, such as questions about the status of community service, they have been hamstrung by outmoded constitutional provisions and the unrealistic view that community sanctions are not punishments. International instruments in the sphere of community sanctions too have not yet had a significant impact on national law relating to community sanctions. Notwithstanding all these weaknesses, the analysis has revealed that there are general legal principles which can be applied to the imposition and implementation of community sanctions. When considering the role of law in setting limits for community sanctions it is important not to take too narrow a view of what aspects of law may be relevant. Von Hirsch has warned of the dangers of a legalism which would regard a community-based sanction as not being overly intrusive if it meets certain strictly interpreted constitutional requirements, in this instance those set by the constitution of the United States of America. 10 8 There are, Von Hirsch points out, substantive ethical grounds for imposing limits on such sentences as well. The point about the dangers of a narrow legalism is well taken but many of the ethical arguments which Von Hirsch advances can also be grounded in wider legal principles. This is apparent from the analysis of, for example, the way in which a concept such as 'acceptable penal content', which Von Hirsch regards as being an ethical concept, fits into wider concep10 9 tions of appropriate legal limits on penal sanctions. It is at the level of an analysis which attempts to derive standards from general legal norms that the various international instruments are most useful. They provide a degree of precision to what would otherwise be vague generalities. Standards thus derived can be useful in a number of ways. In rare instances they may be used to argue for fundamental constitutional reform, such as the proposals for an amendment to the restriction on forced labour in the Ger104. European Rules 47-52; Tokyo Rules 19.1-19.2; Groningen Rule 16. 105. BVerfG 35, 202. 106. 378 US 546 (1984). 107. [1983] 1 AC 1 (HL). 108. A. von Hirsch, loc. cit., p. 164. 109. See 4.1 above.

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man Grundgesetz and in the European Convention on Human Rights. A constitutional amendment would open the way for a penal sentence to community service which could be imposed directly rather than having to masquerade as a rehabilitative condition of probation.110 Such a sentence would, of course, have to be restricted by the standards which should be applied to all community sanctions. More often such standards derived from general norms may be applied directly in order to amend the ordinary law of sentencing. They allow, for example, for a strong case to be made for the removal of the open-ended discretion which is still a feature of the sentence to bind over in England, or for a restriction of the virtually unlimited power of the courts to set conditions of probation in the United States of America. In the latter case in particular it is important to recognize that one is dealing with a form of community punishment. The oft-expressed fear that punishment will be disguised as treatment and then not subjected to restrictions, should be taken as seriously in the case of measures applied in the community as in the case of those implemented in residential institutions. For officials who require principles of interpretation in order to implement the community sanctions and for courts who have to judge the acceptability of the decisions which such officials make and the procedures which they adopt, clear legal standards to which community sanctions should conform are also of great value. The search for clarity in international instruments should not blind one to their weaknesses. The analysis which has been conducted here has attempted to develop central ideas such as 'acceptable penal content' and 'Unzumutbarkeit' by relating them to generally acceptable legal principles and then applying them to the problems which merge in the creation and application of community sanctions. When the specific rules contained in the international instruments have been approached in this way it has become apparent that they do not always offer adequate guidance. Where they do offer such guidance, it is not always clear why a particular approach is being taken or how it relates to wider principles. The Rules themselves can therefore be improved. However, this is an evolutionary process. It is not surprising that the newest of them, the European Rules on Community Sanctions and Measures have been able to be more clearly focused than the Tokyo Rules whilst avoiding the occasionally unjustified specificity of the Groningen Rules. Analyzing the legal limits of community sanctions is not only an exercise in jurisprudence. It is a source of strategies to counteract the potential dangers of net widening whilst allowing for the introduction of community sanctions. Whilst the challenge to administrators is to implement these strategies, the challenge for penologists is to research their efficacy in practice. Only by determining in a principled way what these legal limits should be, by implementing such limits in practice and by studying their efficacy can we hope to progress beyond the rhetorical debate between those who support community sanctions and those who fear net widening.lII

110. T. Weigend, Ioc. cit., p. 359. 111. For a relatively rare attempt to engage in the debate at both a theoretical and empirical level, see M.W. McMahon, The PersistentPrison?Rethinking Decorcerationand Penal Reform (Toronto 1992).

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