Inventory of alternatives to incarceration: Evidence of a promising way forward

This inventory identifies a broad variety of alternatives to incarceration that:

• Have been adopted over the past few years in countries from around the world
• Have shown promise in reducing incarceration
• Compatible with international drug conventions
• Are respectful of human rights
• Have a proportional approach that may have a positive impact on populations in conditions of vulnerability.

This inventory profiles the variety of alternatives and shows that Member States employ a broad range of policy options to provide tailored responses limiting the use of incarceration for those who commit drug-related offenses.  This resource is not intended to rank alternatives from best to worst; instead, it operates under the assumption that the best approach for Member States may be to develop several alternatives, adapted to meet their particular context and the variety of crimes that they must confront. In this way, the inventory seeks to highlight opportunities offered by these experiences, acknowledging some of the difficulties in their implementation.

The inventory of initiatives examined in this exercise illustrates that governments have increasingly begun to investigate and implement alternatives to incarceration which enable them address the drug problem in new ways, while maintaining public safety, the rule of law, and their international human rights and drug control obligations. This inventory is a testament to the variety of these initiatives and the creativity with which they are being applied and adapted.  By classifying the initiatives by the stage in the judicial proceeding, by target population, by whether or not they are specifically designed to offer address the needs of groups in conditions of vulnerability, and by levels of implementation. This inventory seeks to contribute to Member States’ efforts to examine the relevance of alternatives to incarceration to their own contexts.  Most importantly, this inventory aims to illustrate how alternatives to incarceration for drug-related offenses can contribute to stronger, healthy communities with less crime and fewer victims.

This catalog should be viewed as a first step to guide future efforts, which by no means excludes any other existing experiences on the subject. It is also important to recognize that this inventory is not intended to serve as an evaluation of the alternatives identified herein.  On the contrary, this resource is only intended to describe a variety of initiatives, each interesting in its own right, and to put forward some fundamental characteristics on which they are based.

These experiences are as varied as the countries and jurisdictions in which they operate. Some were started as long ago as the 1980s, some as recently as 2015. Some are managed at a national level, some at the level of provinces, states, regions or departments, some by criminal justice entities, some by national health ministries, and some by independent non-profit organizations. Some include participation of state agencies, while others do not.  Annual budgets range from zero (all volunteer) to those in the millions of dollars, and the numbers of participants range from dozens to more than 10,000. Some are limited to one phase of justice involvement, such as police forces or problem-solving courts, while others are available to be accessed at various stages of the criminal justice system, from arrest through to appearance before a judge. Likewise, the types of alternatives analyzed, from drug education to substance use treatment to mental health services to homeless services and job training, vary from program to program and country to country. Some utilize independent case management while others rely on probation or other supervisory mechanisms to ensure compliance and access to services.

No matter how successful alternatives may be in one country, a detailed analysis and, most likely, a number of adjustments, will be required for these alternatives to be successful in another country.  Because context plays such a central role in the way rules and institutions actually function, significant differences among countries can mean that a particularly successful alternative in one country may not necessarily be successful in another.

According to the stage in judicial proceedings at which they occur

Alternatives to incarceration can be grouped into three broad categories according to the stage in judicial proceedings at which they occur.  Accordingly, this inventory refers to:

a) Measures taken prior to the opening of a criminal proceeding, and aimed at limiting entry into the criminal justice system; 

This category of alternatives enables a number of individuals to stay out of the criminal justice system. These alternatives are usually associated with three fundamental strategies: i) decriminalization of certain conduct,  which basically involves removing that conduct from criminal law and, therefore, removing the possibility of incarceration as a punishment; ii) depenalisation of certain conduct, which allows closure of a minor criminal case without issuing a penalty; and iii) law enforcement diversion mechanisms, in response to criminal conduct that could eventually be sanctioned with incarceration, but is diverted towards rehabilitative measures instead. It is important to note that decriminalization does not imply the same policy everywhere it is implemented.

b) Measures applied during criminal proceedings, and aimed at either preventing the criminal case from resulting in incarceration, or making the incarceration proportional to the offense; and

These alternatives take place during the course of a criminal proceeding, which might vary from country to country, but generally would include the phases of prosecution and trial, including conviction and sentencing.  These can include prosecutor-led diversion, or diversion to specialty courts, or modifying the laws that specify the sentences to be given.  In Latin America and the Caribbean, there have been several initiatives that could be regarded as alternatives used during this stage of proceedings.

c) Measures for prison populations, aimed at providing for early release of convicted and imprisoned individuals along with social integration strategies.

Post-sentencing alternatives refer to mechanisms that work to substitute or reduce incarceration for drug-related offenses and are applied after an offender has already been sentenced.  Examples of this include probation or early release programs, as well as pardons or clemency.

According to the target population

In addition to being classified by stage in the judicial proceedings, alternatives to incarceration can also be classified by the target population.
Starting from the premise that most of those incarcerated in the hemisphere are users, people transporting small quantities, or those with little role in a criminal organization, and that alternatives to incarceration are a viable way to reduce recidivism for these types of offenders, this inventory focuses on lesser offenses, such as:

1. use and possession for use, when such behavior is criminalized, whether by recreational users or addicts;
2. small-scale growing and producing, especially in the case of peasant farmers or indigenous people, or for personal use or cultural purposes; and
3. non-violent, small-scale distributors  and “drug mules.”
4. The inventory also takes into account individuals who have committed other minor crimes under the influence of illicit drugs, or to support their addiction.

Nevertheless, it is recommended for Member States to reflect on the need to implement alternatives to incarceration for a wide variety of drug-related offenses.

According to whether or not offer a benefit to vulnerable groups

In addition to being classified by stage in the judicial proceedings, alternatives to incarceration can also be classified according to whether or not offer a benefit to groups on vulnerable situation such as, but not limited to women, youth, or indigenous populations. Considering the target population allows different alternatives to be viewed according to whether they aim to address the needs of particular groups of people, and may be especially beneficial for choosing effective alternatives for groups in conditions of social vulnerability.

According to the levels of Implementation

Classifying by levels of implementation illustrates how alternatives may require different levels of institutional involvement and coordination, from a pilot project in a single courtroom to a new parliamentary law and accompanying regulations.  This is important for those Member States considering the resources and time involved in making changes, and whether changes are only required in a few key locations to rapidly solve a specific problem, or whether they should be local, regional or nationwide.  Member States are invited to consider also these aspects of alternatives as the different models are outlined. While this inventory does not provide in-depth analyses, the alternatives have been organized according to these typologies for Member States’ consideration.