Outline the objectives behind sentencing policy which the court must consider in passing a sentence.
Outline the objectives behind sentencing policy which the court must consider in passing a sentence.
Central to an understanding of the criminal justice system is the phenomenon of punishment. Punishment fulfils a number of functions. Social commentators as diverse as Michel Foucaulti and Charles Dickens have characterised punishment primarily as a method of social control 'pour encourager les autres', in which 'les autres' means the law-abiding who might otherwise be tempted to cut corners. Theorists of punishment tend to adopt one of two approaches. The reductionist approach sees punishment as an instrument to discourage anti-social conduct, typically through deterrence and isolation. The retributionist approach sees punishment as a morally just and/or necessary response to wrongdoing.
When s.142 of the Criminal Justice Act 2003 comes into effect (expected to be in 2006-2007), the purpose of sentencing will be set out in legislation for the first time. The section reads in part:
(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing-
(a) the punishment of offenders,
(b) the reduction of crime (including it's reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
The section goes on to exclude from its operation those under the age of 18 at the time of conviction, those convicted of murder, those subject to mandatory minimum sentences, those who come within the provisions for dangerous offenders, and those in respect of whom a hospital order, hospital direction, or limitation direction are made.
Where the offender shows no likelihood of reform, and a deterrent sentence is not appropriate, the correct approach may be to impose on the offender a sentence appropriate to his degree of guilt. In other words, a sentence which is proportionate to the seriousness of the offending behaviour by reference to the retributive principle - the offender gets the sentence he or she deserves. Punishment is also a publicly orchestrated response to a wrongful act or omission. Society would expect the Court to impose some kind of punishment for those who have committed a crime or an act of wrongdoing. Such a response by society may be traced back as far as biblical times and beyond with such references as 'an eye for an eye, a tooth for a tooth'.
Punishment helps to reduce crime in many ways. Pitched at the right level the threat of punishment offers to deter the individual from offending. Actual punishment may deter the individual from reoffending and cast a warning to those who might be like-minded in committing a similar offence. The Court may recognise in certain instances that it is necessary to impose a stricter approach to sentencing and perhaps a severer punishment imposed due to the nature of the crime committed. It is clear that public opinion has a large role to play in the decision to impose a deterrent ...
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Punishment helps to reduce crime in many ways. Pitched at the right level the threat of punishment offers to deter the individual from offending. Actual punishment may deter the individual from reoffending and cast a warning to those who might be like-minded in committing a similar offence. The Court may recognise in certain instances that it is necessary to impose a stricter approach to sentencing and perhaps a severer punishment imposed due to the nature of the crime committed. It is clear that public opinion has a large role to play in the decision to impose a deterrent sentence and if society has a particular revulsion toward an act, selling drugs to children for instance, the Court is likely to reflect public opinion in its sentencing. In such cases the Court cannot be seen to be lenient to offenders.
Punishment may also fulfil a protective role for society by removing the offender from society and with it his capacity to commit further crime. Punishment, then, has shown itself suitable to fulfil a social symbolic function by drawing a line between the socially valuable and the socially valueless members of society.
The rehabilitative ideal shows a humane self-consciousness on the part of the punishing state. Criminal behaviour is not simply an evil to be responded to but a sign that something has gone wrong for the individual as well as for society and the state's humane response is for intervention to put things right. It aims to re-model the offender's personality through counselling so as to socialise him, rendering him responsive to normative control. Without rehabilitation the penal experience, particularly prison, might conduce to increasing the desire to offend - rather than reducing it. ii Rehabilitative considerations commonly lead the Court to impose a reduced sentence. However, since a rehabilitative approach involves an attempt by the Court to find a sentence which is most likely to induce reform, a rehabilitative sentence may sometimes appear to be more severe than a sentence imposed following some other approach.
Having adopted the most suitable approach with regard to the circumstances of the offence and the characteristics of the offender, the Court will apply the principles appropriate to that approach to determine the precise penalty or measure which is to be imposed on the offender. The application of retributive principles requires the Court to find the sentence which most accurately reflects the offender's culpability. Mitigating circumstances may be taken into consideration in reducing the severity of such a sentence. On the other hand, rehabilitative principles require the Court to find the measure which will most likely induce the offender to reform. Thus, the gravity of the offending behaviour is irrelevant to such an approach, and the sentence will reflect an assessment of the probable future conduct of the offender and his likely response to various measures. Finally, deterrent sentences reflect neither the gravity of the offending behaviour nor the characteristics of the offender, but rather, they depend on an assessment of the likelihood of the offender and others committing further similar offences.
The decision with regards to sentencing involves a choice between a series of options. In any particular case, the range of options will be in part determined by the circumstances of the offence, for instance whether it is imprisonable and the maximum punishment the law lays down, and of the offender i.e. his age. Such options include:
(a) an absolute or conditional discharge,
(b) a fine,
(c) a supervision order,
(d) an attendance centre order,
(e) a curfew order,
(f) a community rehabilitation order,
(g) a community punishment order,
(h) a suspended sentence, and
(i) an immediate custodial sentence.
Finally, it is worth noting the recent changes within the sentencing policy. New types of sentence include Custody Plus, Custody Minus, and Intermittent Custody; all involving an element of community supervision and thus perhaps show an increase in tendency of the legislature to adopt non-custodial sentencing practices.
In consideration that 58% of offenders reoffend within two years, can it be argued that the custodial sentence meets any of these objectives?
The Court must be aware of the sentencing options and any legal restrictions which apply to them, such as the statutory maximum which govern the sentence for that particular offence, the limits on the jurisdiction of the Court, or the separate provisions for certain individuals such as young offenders. But within this framework there is a considerable degree of discretion for Courts in choosing sentence in individual cases.
Arguably, the Court's first consideration in determining sentence is the public interest, which is served not merely by punishing the offender and showing a deterrent to others but also by affording a compelling inducement and an opportunity to the offender to reform. Thus the sentencing judge must decide whether to impose a sentence of sufficient severity to punish the offender, or of such severity so as to deter the offender and others from committing similar offences in the future, or, alternatively, to choose an "individualised" measure, i.e. a sentence based not on the severity of the offending behaviour but on the individual needs of the offender; i.e. a sentence likely to reform the offender.
When raising the argument of the effectiveness of a custodial sentence it is useful to consider statistical studies conducted in such areas. Research indicates that it is the threat of punishment, rather than the actuality of it that has the greatest deterrent effect.iii There is little evidence to suggest that different types of punishment, such as imprisonment, have a greater deterrent effect than others and yet statistics suggest that the more a defendant has been incarcerated the more likely it is that he will reoffend.iv
Although it is reasonable to suppose that for certain classes of crime such as violence and sex offences, the deprivation of liberty may reduce the disposition to offend, for other classes, particularly property crime, the disposition to commit offences may in fact increase. By incapacitating today's burglars, robbers and shoplifters now, one may be storing up problems for the future. Imprisoning offenders merely transfers anti-social behaviour activity to a place where it is less visible. While the threat of punishment may have a reductive effect and the imposition of certain forms of punishment such as fines an individual deterrent effect, the major institution for punishment for serious crimes, namely imprisonment, may actually be counterproductive whether conceived in terms of deterrence, incapacitation or rehabilitation.
We must also consider why offenders commit subsequent offences after a period of time in detention. It could be argued that at times when custodial sentences are necessary, it is the rehabilitative procedures that fail in their duty. Many of the prisons in Britain are now overcrowded and significant problems such as rising percentages of inmates with HIV and drug problems are pandemic. It may be argued that exposure to these environments would conduce an offender to commit crime in the future. It would therefore be the state of prisons that are to blame rather than theory of custodial sentences.
In conclusion, although it is necessary to take in to consideration the high level of re-offending following custodial sentences, it must be weighed up against the need to provide a clear deterrent to potential offenders (or re-offenders) and to providing safety to the public. Whilst there is a high percentage of re-offenders after incarceration, it could be stated that this is a problem brought about by the current state of the penal institutions and the apparent lack of rehabilitative services such as counselling. Custodial sentences do provide solutions to the sentencing objectives if only for the short-term by way of protection to society and deterrence. However, the longer term implications of incarceration may well detract from these successes.
Bibliography
-William Wilson Central Issues in Criminal Theory (Oxford - Porland Oregon) 2002.
-John Sprack A Practical Approach to Criminal Procedure Tenth Edition (Oxford University Press) 2004
-Sweet & Maxwell web site
-Law Reform Consultation Paper (2003)
i M Foucault, Discipline and Punish: The Birth of the Prison (Penguin, Harmondsworth, 1976).
ii Francis T Cullen and Karen E Gilbert, Reaffirming Rehabilitation (University of Ohio Press, Cincinnatti, 1982).
iii See generally Home Office Paper, 'The sentence of the court' 1990.
iv See J Andenaes, 'The General Preventive Effects of Punishment' (1996) 114 U Pa LR 949.
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