International Journal on Criminology Volume 1, Number 1, Fall 2013 | Page 45

International Journal on Criminology
Thus, court supervision is a first-category measure if it is declared ab initio. But if the
decision is reached while the defendant is in pre-trial detention, it is a second-category
measure: it reduces the time spent in prison while awaiting judgment. It is the same with
suspended sentences: it is a first-category sanction if the accused was not in temporary
detention, and a second-category sanction in the opposite case. Conditional release (CR)
falls into the second category. Of course it does not reduce the time served for the
sentence, but it does enable anticipated release—with discharge from prison—with the
remainder of the sentence to be served in open custody. Thus, questions concerning early
release decisions are an integral part of the issues surrounding alternative sanctions.
The limitations of the preceding dichotomy within the group of alternative sanctions
are thus clearly evident. What then, for example, of inmates placed under electronic
surveillance? This would not fall under the first category, because the person is
committed to prison. Nor does it fall under the second category, because it does not
reduce the amount of time spent in prison. Thus, third-category alternatives are MPSs
that reduce the real time spent behind the walls of detention facilities, without discharge,
and thus without reducing the time spent in prison. This third category therefore includes
measures such as electronically monitored house arrest, for which the person committed
to prison is not detained, in the sense of being housed in a detention facility. But we can
also find measures where the person is housed, but whose time spent behind walls is
reduced in some way: semi-custody, extra-mural placement with housing, leave of
absence.
As argued in the recommendations put forth by the Council of Europe in 1999, the best
way to combat prison inflation is to develop, simultaneously, the three types of
alternatives. 15
VIRTUAL ALTERNATIVES TO PRISON AND/OR TO DETENTION: When a
person, who has not yet been subjected to pretrial detention, is placed under court
supervision ab initio and later receives a simple suspended sentence (total), it might seem
that this individual supervision measure effectively allowed this person to escape from
prison. However, one could also suggest that the judge would not have made use of
pretrial detention if court supervision had not existed in law. The judge used an additional
guarantee. If this is the case, court supervision is not serving as an alternative to
detention, but is instead a virtual alternative. As a consequence, it widens the net of social
control; this is the theory of net-widening. This same question can, in fact, be raised for
all first-category alternatives. Would an offender sentenced to public service have
received a fixed prison term if public service were not included in the range of penalties?
Would the offender not have rather benefited from a suspended sentence, or even from a
fine?
In the realm of second-category alternatives, the matter is quite different. An offender
who still has three years of solitary confinement to complete, and who receives
conditional release (CR), benefits from a real alternative. He will complete the remaining
three years of his sentence outside prison walls. And yet...
In France, CRs are uncommon. Suppose that this measure were one day more
commonly used. Would it not lead to a compensatory increase in the number of sentences
handed down by jurisdictions frustrated by the erosion of their sanctions? Thus, a very
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15 Council of Europe, Prison overcrowding.
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