There are alternatives to prison: not just in drug cases | Sandra Scicluna

In the wake of last week’s court ruling, you called for a change to the law: arguing that “Prison is definitely not the right punishment” in cases such as this. What, in your view, is specifically wrong with Malta’s current legal setup?

Part of the problem is that – not just in this particular case, but in others too – the law does not provide the judiciary with any real discretion, when it comes to passing sentence.

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.

The only choice they have, is vis-a-vis the length. And there, the choice is quite extensive: all the way from a minimum sentence of three months, to a maximum of life imprisonment.

We also know that prison sentences can be traumatic. Even in the case of a minimum sentence, the consequences can be quite serious. A sentence of only a week can still cost you your job, your reputation, etc. And in reality, these short sentences do not really achieve anything, other than punishment for its own sake.  The aim cannot be to ‘rehabilitate’ the perpetrator; because if we want to talk about rehabilitation… it cannot be achieved in a week, two weeks, three months, or six months. It needs time.

So these sentences are ultimately retributive; and I don’t think they have a huge deterrent effect, either.

Most of these cases involve small amounts of drugs – six ecstasy tablets, in this instance - and under those circumstances, the person concerned will not be thinking about ‘getting caught’: partly also because of the age of most offenders. Let’s face it: we were all young once, and we all know how young people tend to feel invincible… to believe that ‘bad things cannot happen to them’, and so on.

So in practice, the prospect of a short prison sentence will not ‘deter’ them in any way. These sentences only end up stopping those people who are not, in effect, hardened criminals. They would certainly stop someone like me: because I would say, ‘If I go to prison, I would lose my job…I would lose respect… I would lose everything’. But a teenager, with no real experience of the world, will not reason that way. And a real drug trafficker, dealing in large quantities, will not be deterred at all.

You’re touching on an argument that is often used at street level, when questioning this kind of sentencing. There is, after all, a distinction between ‘drug trafficking’ as part of a criminal enterprise, and, say, ‘buying six ecstasy tablets to share with friends’. And if the law doesn’t distinguish between those scenarios… how can it be effective in dealing with the serious cases?

It’s not a case that the law ‘doesn’t distinguish between those scenarios’, however. It does: there is, after all, a big difference between a prison sentence of three months, and 30 years.

My only problem with this, is that prison sentences – in all such cases - are mandatory. If I was a legislator, I would also allow for alternatives to prison. In this particular case, for instance: because we are dealing with a crime that was committed eight years ago – and I’m assuming that the person has ‘settled down’ in the meantime – probably, a community service order would have been a better approach.

If, on the other hand, the person had not settled down… then we could look at a probation order instead; or a treatment order. These alternatives do exist; but the law, in its current state, does not allow the judiciary the discretion to actually use them.

The judiciary itself has been known to raise this issue from time to time. Recently there was a case where a young woman was given a mandatory sentence for cultivation of cannabis… even though the magistrate pointed out, in her ruling, that it was clearly for personal use. Do you interpret that as an admission, on the part of the judiciary, that the current system is not working?

I think a lot of judges and magistrates – if not all of them – are conscious that there is a problem. Bear in mind that they will be hearing specific cases; and if, say, you are hearing a case where it is clear that the person concerned has meanwhile settled, and left that way of life… and this tends to be especially true of cases involving ecstasy: which is a ‘weekend drug’, that people may take for a couple of years, as a phase that they go through. I don’t want to generalize, but it’s not usually a lifetime habit, that goes on for years on end…

So when a magistrate sees all this, they will be acutely aware that they are going to put that person in prison, in a system which is not really geared up for rehabilitation.

On the contrary, there is a real risk that the people concerned will come out of prison, in three or six months’ time, and find themselves back at square one.

This is particularly true of those suffering physical addictions: for instance, to heroin. A lot of those people risk going back to their old lifestyle: because of a sentence that, when all is said and done, could really have been avoided. Not, perhaps, with the law as it stands today; but a simple change to the law could reduce this risk considerably…

Yet there seems to be considerable resistance, from legislators, to changing the law. Do you have any idea why?

I think it’s because, when talking about the crime of drug trafficking, what most people actually envision are the big drug barons, making millions out of selling drugs to vulnerable people.

But this view does not take into account young people, with no criminal record, whose crime is to buys drugs, and share them with friends.

This counts as trafficking in the eyes of the law; and laws are drawn up by Parliament… which is, in turn, made up of politicians. And I think politicians are reluctant to legislate in a way that is seen to be ‘soft on crime’.

Even if we look at the recent amendments on cannabis, for instance. The impression many people out there have is that cannabis has become ‘legal’. Well… it hasn’t. There is still punishment attached to it; and OK, in most cases it will be a fine, as opposed to a prison sentence. But a fine is still punishment; and as long as there is punishment, you cannot talk about it as being ‘legal’.

Apart from the issue of ‘trafficking’ versus ‘personal use’, Malta’s prison system in general does not distinguish between crimes according to severity. There is only one prison; and while it is divided into different sections, people sentenced for trivial crimes may end up sharing the same living space as violent, or otherwise ‘serious’, criminals. Isn’t it time we started considering other possibilities… such as, for instance, building another prison?

There are a number of problems, in this regard. We have, as you said, one prison which caters for everyone: from people convicted of minor offences, to those convicted for the most serious crimes imaginable. We also have a range of people sentenced to one week, to people serving life sentences. This is what our prison has to deal with: with all the added concoction of inmates who may have drug habits, mental health issues, and all sorts of other problems.

And from the prison administration’s point of view, what matters is not the crime you were convicted for… but rather, how you behave while in prison. And it makes sense, too: because people need to be held in prison safely, without posing a danger to others. This, ultimately, is what the prison administration is concerned with.

One possible approach might, as you suggest, be to build a separate prison, and segregate inmates according to the severity of the crime. There are two problems with that, however. One is the cost: prisons are very costly to build, and also to operate. The other is… who will want a prison in their backyard? In fact, the reason Malta’s only prison is in Paola, is that – when it was built in the late 19th century – hardly anyone lived there at all. The population of Paola was around 500, at the time…

Isn’t that true of everything, though? No one wants a power station, or a landfill, in their backyard either…

Yes; but in this case, it would be a huge issue. Naturally, this doesn’t mean it ‘can’t be done’ – everything can be done, up to a point. But… is that the only way? Ultimately, it boils down to a system of dividing prisoners that makes sense….

But does the current prison system ‘make sense’, from that perspective?

There are certainly issues that need to be addressed. One of the main problems, today, is the huge number of inmates who are not convicted at all; but awaiting trial under arrest. At present, there are more people held in custody under arrest at Corradino, than actually serving a sentence. A considerable number of those, in turn, are foreigners from non-EU countries: with which we have no extradition treaties.

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: which is quite shocking, in and of itself.

And prison is the only institution that cannot actually refuse people: they can’t say, ‘Sorry, we’re full up… find another place’.

So yes, it’s a massive problem. And I think we have to address it by revising our penal policy. Prison should, ideally, be a necessary last resort: reserved only for sentences of a certain duration.

The way I see it: if someone is sentenced to anything up to two years - with certain exceptions, naturally - that person doesn’t really need to enter a prison setting at all. And any sentence of less than six months is particularly unnecessary: I can’t even imagine what use there is in sending them to prison in the first place.  There just isn’t enough time to work with them.

And yet, a recent Parliamentary Question revealed that around half Corradino’s current population – of the ones actually convicted; in other words, not counting the 500 who are awaiting trial - are serving sentences of two years, or less.

So my theory is that these people don’t actually need to even be there…

This raises the question of what to do with them, though. I imagine you’re not advocating a blanket amnesty for anyone who commits a minor offence…

No, but I do question whether prison is the right solution.  I, for one, would put them to work, through a community service programme. That way, at least, they would not be a burden on the taxpayer.

Because as I said before: prison costs money. It costs around E80 a day, per prisoner. And in many cases, it doesn’t make sense at all.  For example: there are quite a few people, today, who are in prison because they did not pay a fine. And in those cases: not only did the State lose money, as a result of the fine not being paid… but it ended up paying for their upkeep to the bargain. Where’s the sense in that?

I’m not an economist – far from it - but I do think it’s clear, even from an economic point of view, that the current system is not working.  And this can only be addressed through a legislative change.