Advocating for alternative sentencing
There are some significant limits to judicial activism and the Court has been repeatedly confronted with a tradeoff between activism and restraint. Excessive judicial interest in policy issues may risk the Court being shackled by limited impact its judgment may create on the ground.
Administration of criminal justice system is established to maintain peace and tranquility in the society by punishing the criminals. The state foresees that by giving harsh punishments to the offenders, they will deter other like-minded people; the victim's vengeance will be satisfied; the very same convicted person will be prevented to commit any further offences; he will be reformed in the prison and ultimately crime rates in the society will decrease in future. But the modern penology suggests that harsh punishments are not effective enough to reduce crimes and resist recidivism in any given society; rather severe nature of punishments makes the prisoners stubborn that leads them to be obstinate criminals after being released from prison. From a humane point of view, however, the offenders should be given well-treatment in lieu of severe punishments. Alternative sentencing, specially alternative to imprisonment, are often used in many legal systems to reduce overcrowding in prisons and ease the rehabilitation and reintegration of released prisoners in the society.
Till date, the prisons of Bangladesh are overcrowded with more than double number of inmates that deteriorates overall prison condition including violation of human rights of inmates, breeding criminal activities in prisons due to possible association with notorious criminals. The offenders are not accepted normally and as such the released offenders and their family members face troubles in reintegration to the society. In such a situation, development and use of non-custodial punishments may be proper alternatives with a view to reducing pressure on prisons and aiding the released prisoners to reenter in the society easily. The UN Minimum Standard Rules for Non-custodial Measures (the Tokyo Rules) 1990 and the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) 1985 along with the Probation of Offenders Ordinance 1960 and other domestic penal laws allow the frequent use of alternative sentencing in the administration of criminal justice of Bangladesh.
At present there are various types of common alternative sentencing, inter alia, fine, probation, parole, furlough, community service, conditional discharge, house custody, compensation to victims and open jail. Among them we may develop and use the suitable ones considering socio-legal environment of our country. Fine, probation, parole, community service and open jail may be introduced in Bangladesh in large scale with some pilot projects for some selective convicted offenders.
As regards to fine, the Penal Code 1860 treats it as both alternative to imprisonment and collateral to imprisonment by providing '…shall be punished with imprisonment or with fine or with both' and 'shall be punished with imprisonment and shall also be liable to fine'. Fine, as a punishment, does play an efficient role to achieve penological goals; lessen economic pressure on prison administration and help the convicted offenders reintegrate in the society. Our criminal courts may utilise this possible avenue as alternative to imprisonment in some petty offences. The Probation of Offenders Ordinance 1960 envisages probation scheme as alternative to imprisonment for certain offences and it is detailed by the Bangladesh Probation of Offenders Rules 1971. Any offenders punished with imprisonment not more than two years for certain offences and any women punished with other than death penalty may be at the discretion of courts sent to probation scheme under supervision of probation officers. The Children Act 2013 stipulates the provision of probation for juvenile delinquents and the Special Privileges for Convicted Women Act 2006 provides for appointment of probation officer. The judges and lawyers of the criminal courts should be given necessary training and a separate Department of Probation of Offenders may be set up in this regard.
The Jail Code of Bangladesh allows the concerned authority to release a prisoner before completion of terms under certain conditions of parole scheme where a prisoner is allowed to stay with the family members. A prisoner is entitled to this special privilege after serving half portion of sentence subject to good conduct in jail and having training on trade. The prison authority may apply this scheme in massive scale setting up a separate parole wing in collaboration with social service department and play role in reducing congestion in prison. Community service, as a penal measure, may be incorporated in the Penal Code for particular petty offences with view to embracing modern correctional philosophy.
The writer is an Assistant Professor of Law, University of Asia Pacific.