Alternative measures should be based on a comprehensive assessment process.
An effective assessment of the potential threat posed by the offender and his/her eligibility for a pre-trial or post-conviction alternative measure is perhaps the most crucial element, because it informs all aspects of the decision-making process. The specific risk that is being addressed needs to be clearly identified and incorporated into any assessment tool, which should be administered by trained professionals.
Potential factors may include:
- The severity of the crime charged
- The level of radicalization to violence and commitment to violent extremism
- The offender’s receptiveness to intervention and treatment
- The likelihood of the person re-offending
There are a number of different general risk assessment models that may be a good starting point for determining the eligibility of an offender.
Some of the most widely used models used include:
- The “risk, needs, and responsivity” (RNR)
- The invention cycle, which includes assessment, planning, intervention, and evaluation
- The desistance approach, which includes understanding how and why people stop offending17
States may also consider assessment criteria used for other categories of offenders, such as gangs or organized crime members, to help inform criteria that would be most effective for assessing eligibility and suitability of alternative measures for an offender charged with or convicted of a terrorismrelated offense.
In addition to assessing an offender’s suitability for receiving an alternative sentence, it is important to assess the overall effectiveness of alternative measures, both on the individual and as a policy. It is critically important to collect and review data on a regular periodic basis to monitor the effectiveness of any assessment tool or other evidence-based approach in order to identify which aspects of the measure are working and which need adjustment.
17. In addition to general assessment tools used for many different types of crimes, several violent extremism risk assessment tools have been developed in different contexts, which may be useful starting points for developing assessments for suitability of offering an alternative measure.
Alternative measures may utilize a robust incentives and sanctions system.
The objective of incentives is to reward offenders for positive and productive behavior in order to assist in their overall rehabilitation and reintegration into society. Incentives should be scaled based on the progress of the individual and can include offering accomplishment awards for good behavior, such as earning additional privileges, decreasing the level of supervision, or reducing the overall sentence. In addition, States may want to consider the use of alternatives as part of an overall incentive effort in relation to terrorism-related investigations and prosecutions. As highlighted in the GCTF’s Rabat Memorandum on Good Practices for Effective Counterterrorism Practice in the Criminal Justice Sector, “without adequate incentives, those with knowledge of or involvement in terrorist activity may have little reason to cooperate with law enforcement authorities, especially given the fear of retribution by members of a terrorist organization”.18 Therefore, the use of alternatives may be used as part of an overall strategy to encourage cooperation by offenders in criminal prosecutions, to promote the offenders’ acceptance of responsibility, and to encourage reintegration into society.
Incentives may be added to alternative measures that are offered during the pre-trial and postconviction stages.
Conversely, States should consider building in sanctions for non-compliance with the terms and conditions of the alternative measure imposed. The types of sanctions can vary greatly depending on the alternative measure and nature of the non-compliance. Some examples of sanctions include loss of support services, increased supervision, and incarceration. It is important to explain to the offender at the outset the expectations so that the individual knows what is expected and what the consequences are for failing to meet expectations. As with incentives, sanctions may be included in any alternative measure offered during the pre-trial or post-conviction stage.
Incentives and sanctions should have a legal foundation, should be clearly described, and should have a clear nexus to the goal of the offender’s rehabilitation. Any modifications to the incentives or sanctions in an individual case shall only be done by a competent authority in accordance with an established legal process, including possibilities for an offender to request a review or revision of a sanction. Also, written guidelines for incentives and sanctions procedures may produce stronger and more consistent outcomes for the State as well as the offender.
18. Supra note 9.
The use of alternative measures may be particularly appropriate for special categories of offenders.
Many States already allow for alternative measures for specific categories of offenders who are charged with, or convicted of, non-terrorism-related offenses. These categories of offenders may include juveniles, first-time offenders, and people suffering from diminished mental capacity. There are a number of international standards and norms that highlight specific considerations that should be incorporated into laws and policies regarding how particular groups are handled within the criminal justice system.19 While individuals in these categories still need to undergo the requisite assessments to determine the feasibility and appropriateness of alternative measures, it is generally recognized that more emphasis should be placed on ensuring that vulnerable individuals are not victimized by imprisonment if viable alternatives are available and appropriate. For instance, the International Covenant on Civil and Political Rights20 (ICCPR), the Beijing Rules21, and Recommendation 20 (2003) of the Council of Europe22 call attention to the desirability, whenever possible, of utilizing alternative measures for juveniles charged with a criminal offense.23
19. See generally: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) General Assembly Resolution A/RES/40/33 (29 November 1985); United Nations Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules), General Assembly Resolution A/RES/65/229 (21 December 2010); United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, General Assembly Resolution A/RES/46/119 (17 December 1991).
20. Article 14(4), General Assembly Resolution 2200A (XXI) (16 December 1966).
21. Supra note 10.
22. Council of Europe, Recommendation 20 (2003) of the Committee of Ministers to Member States Concerning New Ways of Dealing with Juvenile Delinquency and the Role of Juvenile Justice (24 September 2003).
23. See also the GCTF’s Neuchâtel Memorandum on Good Practices for Juvenile Justice in a Counterterrorism Context.
Judicial engagement and oversight of alternative measures.
In some States, the judiciary plays a critical role in the imposition of alternative measures. Judges ensure that any alternative measure being proposed for an offender is consistent with international laws, norms, and standards. Also, judges are well-positioned to make individualized decisions regarding the offender before them in court. They are also entrusted with safeguarding the offender’s rights. International standards and norms call for decisions to place an offender into an alternative program shall be subject to judicial review or review by another competent authority. Similarly, the offender should be able to seek judicial review of the imposition of detention or other sanctions that materially restrict the offender’s liberty. For these reasons, States may want to engage with the judiciary on the use of alternative measures for terrorism-related cases so that judges have a clear understanding of these types of measures.24
Second, judges may often be the competent authority to impose an alternative measure in some jurisdictions. Therefore, given the potential prominent role that the judiciary may play in the oversight and implementation of alternative measures, it may be useful to develop specific judicial guidelines regarding the factors that need to be considered when making the determination of detaining an offender or utilizing an alternative measure.
24. This could be done in conjunction with any training on the GCTF’s The Hague Memorandum on Good Practices for the Judiciary in Adjudicating Terrorism Offenses.
States should seek to use a multi-stakeholder approach when implementing alternative measures.
While courts may play the central role in imposing alternative measures as well as safeguarding offender’s rights, a multi-disciplinary approach to pre-trial detention and post-conviction incarceration efforts may help ensure that these measures are tailored to the offender.25 To achieve the best results possible, a range of different stakeholders should play a role in the implementation of alternative measures, especially interventions that have rehabilitative and reintegration components. Potential stakeholders who may also be engaged in alternative measures include probation officers, social workers, psychologists, defense lawyers, community leaders, prosecutors, law enforcement officers, and correctional officers.
25. For example, in the Netherlands, there are multi-disciplinary case management teams that develop tailor-made interventions and probation services that provide guidance for reintegration and disengagement.
The use of alternative measures for terrorism-related offenses should be linked to disengagement, rehabilitation, and reintegration efforts.
It is recognized that the underlying premise for using alternative measures in any criminal case is to promote rehabilitation and support successful reintegration into society. This is particularly important for terrorism-related offenses because it can break the cycle of violent extremism and limit opportunities for recidivism and recruitment. When certain alternative measures are utilized, there may be an opportunity to determine why the individual was radicalized to violence and develop an appropriate disengagement and rehabilitation strategy that will help address these underlying motivating factors. As there are different motivations that propel individuals to commit terrorism-related offenses, it is important to have the flexibility to develop and implement measures that are tailored to the offender. By having the appropriate frameworks in place and utilizing proper assessment tools, States should be able to have that ability to administer alternative measures that will allow for effective disengagement and reintegration.