“I do harm to people”. That’s how a Portuguese judge responds when asked what he does for a living, or so he told a meeting on alternatives to prison this week in the beautiful university city of Coimbra. But surely, only for the good of society, his surprised questioners tend to follow up. To which he replies “Sometimes, but sometimes not”.
Punishing people should leave you “with a heavy heart and burnt hands,” he told us. While some of his colleagues on the bench are unlikely to share this wisdom (or his way with words), the judge’s comments typify a long-standing humanistic approach in Portuguese criminal justice - the country was the first to abolish both the death penalty in 1867 and the sentence of life imprisonment not long after.
More recently, it has led the way on drug decriminalisation and enacted emergency powers to release 2,000 people from prison during the 2020 Covid wave- almost a sixth of the total. No prisoners died from the disease and there was apparently relatively little re-offending by those freed early.
Some have argued that this makes the case for seeking to reduce prison numbers permanently. The judge was certainly in favour of lowering punishment levels and making community service much more central to sentencing so that prison numbers are more in keeping with Portugal’s fourth place ranking in the 2021 Global Peace Index. He questioned whether non-custodial penalties should continue to be anchored so heavily to prison in the law. Most of those serving them are subject to jail terms which have been replaced or suspended in one way or another.
The three-day training event for judges, lawyers and probation officers, organised by the University and Penal Reform International forms part of an EU funded project Promoting non-discriminatory alternatives to imprisonment across Europe (PRIAltEur). Other activities include a comparative study of penal practice in EU member states – (cue wry smiles in my direction during the presentation when participants were reminded that the UK is not included).
A pilot scheme to improve access to psychiatric services for people on probation is also being developed in the ambit of PRIAltEur. Portugal’s national coordinator for mental health is enthusiastic about including people in conflict with the law in his ambitious plans to transform the service.
Several contributors seem rather proud of Portugal’s penal law and policy, while being the first to acknowledge that implementation on the ground can be another story. The Council of Europe’s torture watchdog has roundly criticised overcrowding and very poor conditions in the country’s ageing local prisons, though welcomed some progress when they visited in 2019. They will be back later this year.
As for wider society, UN bodies have been concerned about racism both towards Roma and people of African descent. Meaningful discussions at the meeting about racial disparities in criminal justice were prevented by a total absence of information. The Constitution prohibits the collection of data that are disaggregated by race or ethnicity. The UN’s Human Rights Committee worry this hampers the ability to further combat discrimination.
On community penalties at least, probation is embracing a balanced package comprising structured treatment programmes, relationship based practice and new technology. But probation officers carry an average caseload of 70, and while the conference heard about some impressive work by established ngo O Companheiro, civil society involvement in penal matters is relatively limited.
Portugal has for now at least avoided a descent into populist politics which invariably brings a more hard-line approach to crime and sentencing in its wake. For how long?
Right wing nationalist party “Chega”, meaning “Enough”, won 12 seats in January’s parliamentary election, campaigning for life imprisonment and chemical castration. Its founder and leader Andre Ventura has criticised the Covid prisoner amnesty. Ironically, Ventura, is a former law professor, (though not at Coimbra) , whose doctoral thesis criticised penal populism and the stigmatisation of minorities.
The judge at our conference told us that he and his judicial colleagues should “run away from prison sentences as the devil runs from the cross.” As we well know, politicians, or many of them, choose to run in the very opposite direction.