Issue link: https://maltatoday.uberflip.com/i/1337056
8 maltatoday | SUNDAY • 7 FEBRUARY 2021 INTERVIEW There are alternatives to prison: not just in drug cases 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 pun- ishment" in cases such as this. What, in your view, is specif- ically wrong with Malta's cur- rent 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, sus- pended 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 imprison- ment. We also know that prison sen- tences can be traumatic. Even in the case of a minimum sen- tence, 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 sen- tences do not really achieve anything, other than punish- ment 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 ulti- mately retributive; and I don't think they have a huge deter- rent effect, either. Most of these cases involve small amounts of drugs – six ecstasy tablets, in this instance - and under those circumstanc- es, 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 can- not 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 ef- fect, 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 expe- rience 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 argu- ment 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 be- tween 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 in- stance: because we are dealing with a crime that was commit- ted eight years ago – and I'm assuming that the person has 'settled down' in the meantime – probably, a community ser- vice order would have been a better approach. If, on the other hand, the per- son had not settled down… then we could look at a proba- tion order instead; or a treat- ment order. These alternatives do exist; but the law, in its cur- rent state, does not allow the judiciary the discretion to ac- tually 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 can- nabis… even though the magis- trate pointed out, in her ruling, that it was clearly for personal use. Do you interpret that as an admission, on the part of the ju- diciary, 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 specif- ic 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 cas- A recent court ruling - in which a 25-year-old man was imprisoned for six months, for a drug-related offence that occurred eight years earlier – has once again cast a spotlight on Malta's drug-law regime. Criminologist Dr SANDRA SCICLUNA argues that mandatory prison sentences are only exacerbating the problem PHOTO: JAMES BIANCHI / MALTATODAY Raphael Vassallo rvassallo@mediatoday.com.mt