The survey was carried out using a convenience-sampling frame of 1,829 respondents who were questioned in public in the Greater London area. Only 25% considered non-custodial sentences as an ‘appropriate’ alternative to custodial sentences, as means punishment. When asked, nobody thought Mr Blair had done ‘very well’ in fulfilling his ‘tough on crime and tough on the causes of crime’ agenda and only 15% conceded that the Prime Minister had done ‘very well.’ So, the degree of confidence in community-based sentencing as a punishment alternative appears to rather low, based on this particular survey (Johnston, 2003).
Lord Chief Justice Woolf insists: “ Everybody thinks our system is becoming too soft and whimpish. In point of fact, it is one of the most punitive systems in the world.” (Alternatives to Prison, 2000, p. 4). The fact that the United Kingdom prison population currently stands at around 80,000 – which is far higher than most of around 21 other European countries offers some support to this statement, with only Portugal imprisoning more offenders on a per capita basis (Cavadino and Dignan, 2002, p. 14).
Durkeimian philosophy goes some way in explaining societal responses to crime, in that it offers a rationale for the perceived need to punishment. In this instance, the need is for the aforementioned more punitive sentencing that results in incapacitation. Durkeim argues that ‘punishment is an index of society’s moral codes’ plus a demonstration of the force of state power and control which support’s the ‘norms of life,’ for when they are weakened by crime, they are less binding and stand to lose their morally upholding value (Garland, 1990, pp. 1, 33). Durkeim’s argument highlights the fears of the public, in that the conventions and codes that they uphold are being threatened by crime, therefore more stringent measures of punishment must be metered out to protect the moral order. For the Criminal Justice System, this poses a problem. If it is to hand out excesses of custodial sentences, it runs the risk of being seen as punishing too harshly and thus, over zealously exercising its power and control.
Political persuasions and some sections of the media and public may perceive this as the nation state being too powerful and undemocratic, thus becoming an object of fear, rather than a body reason. This in turn, may compromise the independence of the judiciary, in that they may feel ‘obliged’ not to meter out sentences that they feel are appropriate for offenders; considering prevailing themes of social organisation – they may steer their sentencing towards the non-custodial domain if they are not to stand in isolation from the media, existing government and some sections of the public. Therefore, there are several conflicts of interest to be considered when discussing the relative merits of non-custodial vis à vis custodial sentencing.
Non-custodial sentencing can be more cost-effective than custodial sentencing. Around 8 million hours of community service are carried out in the United Kingdom each year by offenders sentenced under the Community Punishment Order (previously a Community Service Order). The offender has to complete between 40 and 240 hours unpaid work per year. Broadly, duties may consist of: dredging canals, graveyard clearance, village hall renovation, playground building and cycle path construction, or indeed a multitude of other services that will benefit the local community (Alternatives to Prison, 2000, p. 5).
The Community Punishment Order is not an option for the offender, as he or she is obliged to complete it as their sentence; therefore it is a form of punishment, but punishment with purpose that benefits the community and saves government expenditure. For example, the cost of one year’s imprisonment is around £27,000 for an adult offender and £42,000 for a youth offender (under 18) in detention. Community Punishment Orders, Community Rehabilitation Orders, Community Punishment and Rehabilitation Orders range between £2000 and £4000 per order put into practice. Therefore, the potential saving as opposed to imprisonment is considerable (Alternatives to Prison, 2000, p. 24; Cavadino and Dignan, 2002, pp. 143-144).
Custodial sentencing has its place in punishing by removing the most dangerous convicted offenders from society that are a threat to the public. Previous convictions may be taken into account when determining sentencing and the likelihood of re-offending. However, who truly knows that a person will re-offend? Can such an assumption be fair on the offender? Sentencers may be playing a safe option in the case of offenders who have committed the more serious crimes, by incarcerating them to avoid a societal moral backlash should they re-offend (Wilson, 2000, p. 113).
Electronic monitoring (otherwise known as tagging) is an alternative to custodial punishment that has several advantages. Custodial sentences can disrupt the work and family life of offenders. Two thirds of offenders lose their jobs whilst in custody, whilst over two fifths lose contact with their family. It is also a cost effective alternative to custody which aims to stop ‘pattern’ offending that occurs at particular times of the day and in particular places. This new form of sentencing facilitates the offender remaining at home, and still being able to go to work and contribute to the income of the household. Of particular importance, the family unit can stay intact, avoiding any emotional distress that might result from the offender being separated from home life (The Source, 2003, p. 1).
Furthermore, high prison populations induce overcrowding, which usually result in poor, inhumane conditions in custody. This infringes the basic human rights of people within a supposedly civilised democratic society. Problems also exist with drugs in prisons. Random mandatory drug testing is carried out, but does not significantly reduce the use of drugs and ironically it can increase the use of hard drugs. For example, Heroin has a shorter life in the bloodstream than cannabis, so is less likely to be detected by random testing. This could create a new market for hard drugs in prison and lead to opiate addiction (Gore et al, 1998, p. 3).
Regarding the aforementioned, the so-called ‘crisis of legitimacy’ of prisons is highlighted, in that the degradation of offenders right to be treated with dignity as human beings and the potential unsavoury consequences of possible hard drug addiction, where none may have existed prior to imprisonment, make the quest for legitimising the reasons for incarceration unpalatable
Durkeim saw modern punishment as ‘irrational, emotional and punitive.’ (Garland, D (2000). This statement could transfer to contemporary society and the way it responds to transgression, which threatens the moral order that is generally held as a binding form of social cohesion which protects by defining boundaries, that if are breached, should be punishable. This view was shored-up by the earlier mentioned Daily Telegraph survey, in which most people tended to support the more punitive custodial sentencing over non-custodial. This is in response to a certain ‘fear’ of crime that attacks the aforementioned boundaries. The way Durkeim expressed society’s responses to crime run in opposition to the functionalism of the sociologist’s ‘social solidarity’ paradigm, in which members of society should work interdependently for the equity of all. This can only be realised if mainstream society can learn to heal offenders, rather than hurt them.
Non-custodial sentencing offers this opportunity through more ‘acceptance’ into society, as it does not exclude offenders from it. It still remains punishment, as it is enforced by law, and restricts the individual’s liberty to a predetermined extent. Additionally, community-based sentencing orders often incorporate opportunities to rehabilitate the offender and offer a second chance in society, rather than suffer the stigmatisation that usually stems from having been in custody, such as securing employment, accommodation and moral approval and acceptance by the wider society upon release.
Weberians may argue that the manner in which punishment is administered has become rationalised. The technical advances of, for instance, forensics and DNA profiling are tremendously advantageous in proving acts of criminality, sometimes with evidence so beyond any reasonable doubt, that it may influence sentencers to consider custodial sentencing as the only option, on the principle that the evidence is so strong – so must be the punishment. Technology may be guilty of removing the humanistic element of moral judgement, pleas of mitigation and human compassion when sentencing is being considered (Garland, 1990, pp. 188-1890).
Also, court procedure tends to deal only with facts that are considered ‘pertinent’ under the laws of evidence. Often social circumstances, physical and psychological factors are considered irrelevant from a legal point of view, and therefore omitted (Wright, 2002, p. 7). Such rationalisation tends to circumvent the need for philanthropy, whereas it is part of the ethos of community-based punishment, in which offenders can go at least some way to making amends for transgression by performing services to the community.
Custodial sentencing or non-custodial sentencing? Both have their merits as this essay has attempted to reveal. Above all implications for either – society and the Criminal Justice System have to critically consider all factors relating to sentencing, particularly those that might have rehabilitative outcomes that may reduce the likelihood of re-offending, sentences that punish, but have positive consequences. This is not to suggest that the only route to take is a non-custodial one, as the impact of imprisonment and its social consequences for the offender and his or her family can be an effective deterrent to committing crime – it rather depends on the individual concerned, as we cannot account for varying dispositions.
Current themes point to a prison ‘population crisis’ with the cost of incarcerating offenders spiralling out of control (Cavadino and Dignan, 2002, pp. 14-15). However, one must consider if it is right that the Criminal Justice System should lean towards non-custodial sentences if they might feel that custody would have been more appropriate. If this is the case then, the ethos and concept of justice becomes blurred as the Criminal Justice System is satisfying the demands of the public and politicians in trying to tailor jail terms to fit prevailing themes of social organisation (Brown, 2003,p. 1).
Custodial sentencing has not proven to be an effective mechanism for reducing crime, so therefore, the next logical step appears to be to test the efficacy of community–based punishment as an alternative. Perhaps over time, it will at least prove to be a more humanistic and dignified response to crime that may yield more rehabilitative and reparational positives and reduce re-offending. However, whether to punish by custodial or non-custodial sentencing is unlikely to significantly reduce crime in society. To paraphrase Durkeim: it is only mainstream society that embraces morality and a sense of duty, which is able to enjoy the rewards of conformity that can promote proper conduct on a consistent and regular basis (Garland, 2000, pp. 388-389).
Durkeim relates to conformity and observing moral values in society, where people have to fit in with the norms and values of others or else they are on the outside of the moral and social order. Issues of social status, class, race and ethnicity can preclude access to this ‘social and moral order.’ If on the outside, these benefits are often unobtainable by legal means, so crime can sometimes be the only alternative; the unequal distribution of wealth ensures this. Therefore, if crime control, or perhaps more desirably, crime reduction is to be fully realised, then society must not stigmatise or isolate, but embrace policies of healing, rather than hurting - for it is perhaps societal inequalities that act as a springboard for crime in the main.
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