Corrections
Is imprisonment the normal outcome of a criminal conviction?
In the systems whose statutes are quoted here, it is the outcome the law tells courts to reach for last. Two legislatures write restraint into the text — one as a principle of sentencing, one as a rule about specific sentence lengths.
In short
A custodial sentence deprives a person of liberty by holding them in a place of detention. A non-custodial sentence imposes something else — a financial penalty, unpaid work, supervision, conditions on conduct, a requirement to attend a programme, or a custodial term that is not activated unless something further happens. The distinction matters because deprivation of liberty is the most severe thing a criminal court routinely does.
Why it exists
AnalysisA system that had only one sanction could respond to every offence in only one way, scaled by duration. The range exists because offences and offenders differ in ways that duration alone cannot express, and because some of what sentencing is asked to achieve — reparation, for instance — cannot be achieved by detention at all.
How it works
Canada states restraint twice in consecutive paragraphs. Section 718.2(d) of the Criminal Code provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Section 718.2(e) goes further, requiring that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Germany approaches the same problem through thresholds rather than principles. Section 56(1) of the Criminal Code provides that on a conviction to a custodial sentence of not more than one year, the court suspends execution of the sentence on probation where it is to be expected that the convicted person will let the conviction itself serve as a warning and will commit no further offences even without the influence of imprisonment — having regard in particular to their personality, prior life, the circumstances of the act, conduct after the act, their circumstances of life, and the effects to be expected from suspension.
Section 56(2) extends the possibility upwards: the court may suspend a higher custodial sentence not exceeding two years where, on an overall appraisal of the act and the personality of the convicted person, special circumstances are present — with efforts to make good the damage caused expressly among the considerations.
Underneath both sits a point the international standards make about what custody is. The United Nations Standard Minimum Rules for the Treatment of Prisoners proceed on the basis that people in detention retain rights other than those necessarily restricted by the fact of lawful detention. Custody removes liberty; it is not authority to remove anything else, and the standards exist to make that operable rather than rhetorical.
Common misconceptions
Widely held beliefs that do not match how the system actually operates.
Common belief: Prison is the standard sentence and everything else is an exception.
In practice: The statutes quoted here are drafted the other way round. Canada’s Criminal Code requires that sanctions other than imprisonment be considered for all offenders, and directs that liberty not be removed where a less restrictive sanction may be appropriate.
Common belief: A suspended sentence means the court decided the offence was not serious.
In practice: In German law the court has already fixed a custodial term and then suspends its execution on stated statutory conditions. The seriousness was assessed in setting the term; suspension is a separate judgment about what execution would achieve.
Common belief: Non-custodial sentences are not really punishment.
In practice: They impose obligations backed by the possibility of custody if breached. What distinguishes them is not the absence of consequence but the absence of detention.
Common belief: Considering alternatives to custody is optional if the offence is serious.
In practice: Canada’s section 718.2(e) frames it as applying to all offenders. The duty is to consider; what the court imposes after considering is a separate question governed by the rest of the framework.
How this varies between jurisdictions
A required section on every guide. Arrangements differ between countries, and we say how.
Two ways of steering courts away from custody.
- By stated principle applying to every offender — Canada, Criminal Code s. 718.2(d) and (e).
- By statutory threshold tied to the length of the term fixed — Germany, StGB § 56(1) at one year and § 56(2) at two years on special circumstances.
- By international standard, which addresses how detention is conducted rather than when it is imposed — the Nelson Mandela Rules.
Rights and accountability
AnalysisA statutory restraint principle gives a sentenced person something specific to point to. A custodial sentence imposed without consideration of alternatives has failed to comply with a provision, which is a reviewable defect distinct from the sentence being too long.
What we could not establish
- Two statutory frameworks are described from primary text. The page makes no claim about how frequently custodial or non-custodial sentences are imposed in either, which would require sentencing statistics the platform has not verified.
- The range of non-custodial sanctions available differs enormously between systems and is not catalogued here.
Where to go next
Related: what a suspended sentence is, probation is three different things, and what sentencing is for.
Related topics
- What is a sentence supposed to achieve?
Four legislatures answer in their own words, and they do not agree — not on the purposes, and not even on whether the question belongs in sentencing law at all. Where a system puts its answer turns out to be as informative as the answer.
- If a sentence is suspended, has the person been sentenced at all?
Yes. The court fixes a custodial term and then suspends its execution on conditions. German law sets out both halves in a single provision, and the order of the two steps is the thing most descriptions get backwards.
- What does “probation” actually mean?
Three unrelated things, depending on the system: an organisation, a status attached to a suspended custodial term, and supervision after release from custody. English supplies one word; the statutes do not.
Sources
Department of Justice Canada (laws-lois.justice.gc.ca) · Legislation · link verified 2026-08-26
The consolidated federal text on the Justice Laws Website, read directly (English; the French text is equally authoritative). Supports s. 718: "The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives" — denouncing unlawful conduct and the harm done to victims or the community (a); deterring the offender and other persons (b); separating offenders from society, where necessary (c); assisting in rehabilitating offenders (d); providing reparations for harm done to victims or to the community (e); and promoting a sense of responsibility in offenders, and acknowledgment of the harm done (f). Supports s. 718.1, marginal-noted "Fundamental principle": "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Supports s. 718.2 principles, including that a sentence should be increased or reduced for aggravating or mitigating circumstances with an enumerated list of deemed aggravating circumstances (a); that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" (b); that where consecutive sentences are imposed "the combined sentence should not be unduly long or harsh" (c); that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances" (d); and that "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders" (e). Criminal law is federal in Canada and this text applies across the country. It establishes no sentence length for any offence, supports no prediction of any outcome, and describes no other system.
Strafgesetzbuch (StGB) § 56 — Strafaussetzung (German original text)
Bundesministerium der Justiz / Bundesamt für Justiz (Gesetze im Internet) · Legislation · link verified 2026-08-26
The authoritative German text, read directly. Supports § 56(1): on a conviction to a custodial sentence of not more than one year the court suspends execution of the sentence on probation ("setzt … die Vollstreckung der Strafe zur Bewährung aus") where it is to be expected that the convicted person will let the conviction itself serve as a warning and will commit no further offences even without the influence of imprisonment, having regard in particular to the personality of the convicted person, their prior life, the circumstances of the act, conduct after the act, their circumstances of life, and the effects to be expected from suspension. And § 56(2): the court may suspend a higher custodial sentence not exceeding two years where, on an overall appraisal of the act and the personality of the convicted person, special circumstances are present, with the convicted person's efforts to make good the damage caused expressly among the considerations. Cited for the existence and structure of suspended sentences in German law. It establishes no practice, no frequency, and nothing about any other system.
The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
United Nations Office on Drugs and Crime · International organisation · 2015 · link verified 2026-07-23
Supports the internationally agreed minimum standards for the treatment of people in detention, including the requirement of independent inspection of prisons. Standards, not a description of conditions in any particular prison system. WAVE 17 ADDITION, read from the primary UNODC PDF, text-extracted locally. Supports Rule 83(1): "There shall be a twofold system for regular inspections of prisons and penal services: (a) Internal or administrative inspections conducted by the central prison administration; (b) External inspections conducted by a body independent of the prison administration, which may include competent international or regional bodies"; and Rule 83(2): that in both cases the objective is to ensure prisons are managed in accordance with existing laws, regulations, policies and procedures, with a view to bringing about the objectives of penal and corrections services, and that the rights of prisoners are protected. Supports Rule 84(1): inspectors shall have authority to access all information on the numbers of prisoners and places and locations of detention and all information relevant to the treatment of prisoners including their records and conditions of detention; "to freely choose which prisons to visit, including by making unannounced visits at their own initiative, and which prisoners to interview"; to conduct private and fully confidential interviews with prisoners and prison staff; and to make recommendations to the prison administration and other competent authorities. Supports Rule 84(2): external inspection teams shall be composed of qualified and experienced inspectors appointed by a competent authority and shall encompass health-care professionals, with due regard to balanced gender representation. Supports Rule 85(1): every inspection shall be followed by a written report to the competent authority, with due consideration given to making external inspection reports publicly available excluding personal data unless the prisoner has given explicit consent; and Rule 85(2): the administration or other competent authorities shall indicate within a reasonable time whether they will implement the recommendations. Supports Rule 54: on admission every prisoner shall be promptly provided with written information about the prison law and regulations, their rights including authorized methods of seeking information and access to legal advice and procedures for making requests or complaints, their obligations including applicable disciplinary sanctions, and all other matters necessary to adapt to prison life; and Rule 55: that this information shall be available in the most commonly used languages, with interpretation assistance where the prisoner understands none of them, conveyed orally to an illiterate prisoner, and provided appropriately to prisoners with sensory disabilities. Supports Rule 56: every prisoner shall have the opportunity each day to make requests or complaints to the prison director or an authorized staff member; that it shall be possible to make them to the inspector of prisons during inspections, with the opportunity to talk to the inspector "freely and in full confidentiality, without the director or other members of the staff being present"; that every prisoner shall be allowed to make a request or complaint regarding their treatment "without censorship as to substance" to the central prison administration and to the judicial or other competent authorities including those vested with reviewing or remedial power; and that these rights extend to the prisoner's legal adviser and, failing that, to a family member or other person with knowledge of the case. Supports Rule 57: every request or complaint shall be promptly dealt with and replied to without delay, and if rejected or unduly delayed the complainant shall be entitled to bring it before a judicial or other authority; that safeguards shall ensure requests can be made safely and confidentially where requested, and that a complainant "must not be exposed to any risk of retaliation, intimidation or other negative consequences"; and that allegations of torture or other cruel, inhuman or degrading treatment shall be dealt with immediately and result in a prompt and impartial investigation by an independent national authority. Supports Rule 87: that before the completion of the sentence it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society.