Katherine Miller – The Penal System Essay
THE PENAL SYSTEM
Discuss the aims of sentencing and consider other factors the criminal courts will use to reach an appropriate sentence.
In order to discuss the aims and influencing factors behind sentencing it is first necessary to establish what is meant by the term, sentencing. Sentencing refers to the judgement of a court stating the punishment to be imposed on a defendant who has pleaded guilty to a crime or been found guilty by the jury.
Whilst the Magistrate court has fixed maximum powers, Crown Court judges do not and as such have wide sentencing discretion, (with the exception of Murder and some second offences which have mandatory statutory sentencing). Before turning to the influences on the Judges when it comes to sentencing a defendant, it is first be necessary to establish the different intentions or outcomes a judge may wish to achieve by imposing for instance a community punishment order, a custodial sentence or a fine.
There are a number of different theories of punishment, and different aims and purposes underlying the legal provisions for sentencing under the English Legal System. Broadly speaking however the aims of punishment fall into six main categories:
It is clear without even an in depth look that each of these aims that there are inherent conflicts, as it is had to see how a sentence aimed at rehabilitation is able to act as a deterrent. Each aim will now be looked at in turn.
The concept of retribution implies that a criminal merits his punishment because he has done something morally or socially evil. Further that the punishment should be related to the harm done by the crime, opposed to the moral guilt of the criminal. The idea of an eye for an eye, or a life for a life, it is this interpretation of retribution which is used to justify capital punishment. Critically this form of punishment does not seek to alter the future behaviour of either the criminal or other citizens, it merely seeks to discipline the criminal for the individual crime(s) committed. Retribution is interpreted today, under the English Legal system as the concepts of correct punishment and set tariffs; as instructed in for instance R v Billam (1986), which set out sentence tariffs for rape. This ideas has been emphases again in the Crime and Disorder Act 1998 which established the Sentencing Advisory Panel with the power to propose to the Court of Appeal (criminal) that sentencing guidelines should be made or revised for certain crimes. However one of the most powerful arguments against such minimum tariff sentences is that it does not allow for any mitigating, influencing or situational factors to be considered and could in some instances prove to be unfair and extreme.