Prison may not be the answer to all criminality problems

Apart from the length of judicial proceedings questions have been raised on whether the judiciary has enough discretion to apply all the options at its disposal

A spate of recent court rulings has once again raised numerous questions about the Maltese justice system: focusing in particular on the time it takes for cases to reach a final verdict in Malta.

One case in particular attracted more attention than others, in part because the accused happened to be the son of European Commissioner Helena Dalli. In a ruling handed down last week, the 25-year-old was sentenced to three months’ imprisonment, over a drug-related charge dating back to 2013, when he was 18 years old.

The sentencing provoked a reaction from, among others, equality parliamentary secretary Rosianne Cutajar, who criticised the lengthy waiting period to reach final verdict.

“When a young man is left in legal limbo for eight years on an act he committed when he was still a young man, it becomes clear that we have a problem with our courts. I know that like him there are many going through this martyrdom – for me, I can never call this system fair,” Cutajar said.

Apart from the length of judicial proceedings, however, this case (and others like it) also raise questions about whether the judiciary has enough discretion to apply all the options at its disposal.

As criminologist Dr Sandra Scicluna explained in an interview with this newspaper: “As the law stands right now, there are mandatory prison sentences for drug trafficking, manufacturing, importation and distribution. Also, suspended sentences do not apply. In these cases, the magistrate would have no choice but to apply a prison sentence.”

Such concerns have frequently been expressed even by the judiciary itself. In a recent analogous case, a young woman was initially sentenced to six months, over cultivation of 6.5 grams of cannabis under circumstances which indicated it was for personal use.

In handing down her decision, Magistrate Natasha Galea Sciberras criticised the current wording of the law, because it “fails suitably distinguish between who truly deserves effective imprisonment.”

However, the problem has deep roots in our legal system. In the 1990s, a similar situation had unfolded, following amendments aimed at strengthening Malta’s offensive against drugs. At the time, the law was changed to redefine as ‘trafficking’ the importation of any quantity of illicit substances; and likewise stipulated a mandatory prison sentence in all cases.

The result was a number of increasingly embarrassing convictions of foreigners – such as Swiss teenager Gisela Feuz – who imported negligible quantities of cannabis, in ignorance of Malta’s drug legislation.

The issue itself, however, is by no means restricted to drugs. Dr Scicluna has also questioned whether it is counter-productive for the law-courts to hand down any prison sentences of a short duration – two years or less – arguing that, in a system supposedly based on ‘rehabilitation’, there would not be enough time to work with the offender.

And yet, a recent Parliamentary Question revealed that around half Corradino’s current convicted population are serving sentences of two years or less. Moreover, there are at present more people held in custody under arrest at Corradino, than actually serving a sentence.

As a result, a prison which has a maximum capacity of around 700, is currently holding more than 900 people. Around 500 of those are awaiting trial.

Coupled with the extent of the court’s current backlog of ending cases, the time has perhaps come to review our criminal penal system. Past experience, such as the Gisela Feuz fiasco, already suggests that mandatory prison sentences, in the absence of judicial discretion, do not work to deter serious crime.

And the sheer number of unnecessary prison sentences is also placing undue pressure on an already over-crowded prison: without improving the rehabilitation rate of offenders.

Moreover, the current situation denies the judiciary the opportunity to contemplate alternatives to prison, which are already – in theory – accommodated by the law. Questioning whether prison really is the right environment for minor offenders, Scicluna added that other approaches – including community service, or probation orders – are being neglected.

“These alternatives do exist; but the law, in its current state, does not allow the judiciary the discretion to actually use them,” she said, adding that the judiciary is well aware of the problems in legislation.

Indeed, the problem is visible to not just the judiciary; but also to academia, and to a general public which – when making comparisons to sentencing policies in other, more serious criminal matters – may be justified in asking themselves whether justice is really being served at all.