Rights of offenders’ children in focus

The interests of offenders’ children should be considered at sentencing, write Aisling Parkes and Fiona Donson.

LAST week, Niall Collins, Fine Fáil spokesman for justice, came under fire for intervening in the case of a father convicted of the possession of €18,000 worth of cannabis.

While some have questioned the appropriateness of his actions in light of the separation of powers, this practice is not unusual as the media has demonstrated in the aftermath of the episode.

However, little attention has focussed on other serious issues at the heart of this story — that of the sentencing process and the rights of children of offenders.

Mr Collins was asked to draw the sentencing judge’s attention to the interests of the accused’s children in this case. The offence of possession of controlled drugs for sale or supply over the value of €13,000 carries a minimum 10-year sentence which can only be deviated from where there were “exceptional and specific circumstances”.

The law sets out some of the elements that can fall into that category, such as pleading guilty. However, the court ultimately has a wide discretion and no real guidance.

Indeed, concern about the consistent operation of sentencing under this provision has led the Law Reform Commission to recommend its repeal. In its place, it recommended a more structured sentencing process that provides clear guidance for the court to follow. Thus, they noted that “consistency of approach… requires that like cases should be treated alike and different cases should be treated differently”.

While presumptive sentences create particular concerns about how to ensure consistent and fair sentencing decisions, such problems are not peculiar to this type of sentence. Indeed, in a system that remains largely rooted in judicial discretion, and where the Court of Criminal Appeal has only recently begun to offer clear sentencing guidance, those concerns extend throughout the system.

Currently, it is standard practice for the courts to take into account relevant matters in the sentencing process — the most significant method being the preparation of a probation report at the request of the judge. In addition, letters, such as that provided by Mr Collins, are written on behalf of offenders setting out their good character and other mitigating factors.

However, given the lack of guidance and structure in the sentencing process, there is ultimately a lack of much needed transparency. For example, little is known about the weight that is attached to certain factors, as well as the extent to which mitigating factors have an impact on the overall sentence delivered.

In this case, Mr Collins’s said motivation for writing the letter was compassion for the offender’s four children who have already lost their mother in tragic circumstances, and are now facing losing their father to prison. While some would be of the opinion that it is the father’s fault since he committed the crime, this ignores the rights of these innocent children.

Thus, when the court sentences a parent, under our system the impact on any children is a residual matter. That is not to say that the courts ignore the impact of imprisonment on children — probation reports typically include the family situation of an offender and the likely impact of a prison sentence. However, the principal consideration for the court is the offender and the wrong they have committed against society.

The rights of the children to family life and contact with their parents are considered to be a relevant part of the sentencing process in some common law jurisdictions. Indeed, since a 2007 case delivered by Justice Albie Sachs in the South African Constitutional Court, the critical importance of recognising the rights of children whose parents have committed a crime in the sentencing process has become a more visible issue internationally.

Reorienting sentencing to include a recognition of the harm that child/parental separation can have on the physical/mental health, educational and social outcomes, and social exclusion of such children would be a significant step towards a more transparent and fairer sentencing process. More importantly, this would support a movement towards breaking the cycle of crime within a family, which serves society better in the long term.

One way of doing this would be through a family impact statement. Adopted in a number of American states, family impact statements allow for the interests of children of offenders to be considered alongside other factors such as victim impact statements at the sentencing stage. Of course, if a prison sentence is considered by the court to be the only appropriate sentence in a case, the rights of the children must be balanced accordingly.

Indeed, placing the interests of children or family clearly before the court as one of many factors allows for a more consistent and transparent approach which provides for a more just outcome for all — the children and society more generally. Furthermore, it removes the need for TDs and other well-positioned members of the community who are driven by compassion to speak on their behalf.

Dr Aisling Parkes and Dr Fiona Donson are lecturers at UCC