Written by Abie Maunders - February 2005
(a)
Retribution
Retribution sentencing aim is simply punishment and revenge, on the basis that the offender deserves to be punished for there crime. Retribution is only concerned with the punishment of the individual and does not seek to rehabilitate the offender or to reduce crime. Consequently a retributive sentence must be in proportion to the seriousness of the offence, so for example an eye for an eye, tooth for a tooth. It must not be merely a vindictive or emotional response. A life for a life is the basis for the death penalty that is still used as a punishment in some places around the world. It is based on proportionality or 'just desserts', sentence must reflect the seriousness of the crime The concept is supported by the use of tariff sentences and Court of Appeal guidelines. In the case of R v Billiam the Court of Appeal set out sentencing guidelines in rape cases. As there was concern over the light sentences often given by judges in such cases. The court decided that the starting point for rape cases is 5 years, with the sentence increasing if there are aggravating and decreasing if there are mitigating features. This decision acts as a precedent over all the courts below. Retribution also allows society to express their hatred or disapproval of a particular crime. Retribution is one of the aims behind our current sentencing policy, set out in The Powers of Criminal Courts (Sentencing) Act. Retribution is not seen to be the most useful aim when setting sentencing policy. It does not really achieve any other purpose than revenge. However it cannot be discounted. Without retribution the needs of the victim and society may be ignored leading to an increase in the number of people taking the law into there own hands. Also The Tariff System does not take into consideration the needs of the offenders. It removes the judge’s discretion in cases and any plea in mitigation can be ignored. It is a popular aim with the public and does ensure consistency in sentencing.
Deterrence
Deterrence is making offenders less likely to offend in the future due to fear of the punishment. There are two forms of deterrence, the first being an individual deterrent where the punishment aims to deter the individual offender. The punishment should be so unpleasant that it stops the individual from re-offending. Short imprisonment is often used as a short sharp shock. Alternatively suspended sentences may be used to act as a threat. The other takes shape as a general deterrent. The offender receives a higher sentence than expected in order to deter others. A Deterrence punishment usually comes in the form of long prison sentences and heavy fines. It is argued that there are two problems with this ‘aim’. Firstly the need to deter can never justify a sentence that is extremely severe and out of proportion. Secondly there is no evidence that sentencing acts as a deterrent. Individuals are deterred through fear of getting caught rather than the potential sentence. It is argued that greater levels of policing or the introduction of circuit TV are greater deterrence. The key problem with deterrence is that few offenders stop and think. Crimes are usually opportunist and are normally unplanned, through into the equation alcohol and drugs and it is extremely unlikely that sentences would deter. Individual are more likely to be deterred if they think they will be caught.
Incapacitation
Another sentencing aim comes in the form of protection of society from the offender (incapacitation). This is to protect society from further offences by making it impossible for the offender to re-offend. Society will be protected if the offender is incapacitated so that he or she can not commit any further offences. The death penalty if the ultimate methods of incapacitation. The public's safety is of huge importance and if there is any concern that the offender is a threat to the general public then he or she must be incapacitated. Our current sentencing policy reflects this aim for two reasons; Custodial sentence should be used if the offence is violent or sexual as stated in section 79 of The Powers of Criminal Courts (Sentencing) Act 2000 and the fact that mandatory life sentence are given in murder cases. A long custodial sentence is the usual method of incapacitation and has in been used for criminals such as Hindley and Brady. Incapacitation is encouraged in our sentencing policy as it instructs judge to impose a custodial sentence where the offence is a violent or sexual offence. Can also come in the from of disqualification from driving and electronic tagging. This is an important aim when sentencing serious offences involving violence or sexual attacks. However in more minor cases such as burglary it is often a short-term solution. Many argue that short prison sentences can also help the offender become a better criminal and become a greater danger to society as prison is seen as the “University of Crime”. This point is extremely valid when talking about young offenders. This “aim” is favoured by the public and is expensive and can lead to overcrowding in prison.
Rehabilitation
Rehabilitation main purpose is to try to improve the offender's behaviour so that they will not commit further crimes. A sentence which aims to reform is considered to be an individualised sentence rather than a tariff sentence. The judge will consider the needs of the offender and will try to set a sentence which will educate or help the individual. In order to help rehabilitate offenders the educational facilities within prisons have been improved, particularly in young offenders institutions. The probation system is also set up to help offenders in seeking accommodation or jobs. Rehabilitation is particularly important when sentencing young offenders, it is hoped that due to their age they can be helped out of a circle of reoffending. Obviously rehabilitation conflicts with the retributive aim as it does not always reflect the seriousness of the offence. It can also lead to inconsistencies in sentencing thus allowing two people who have committed the same offence receive vastly different punishments. Also rehabilitation can discriminate against the underprivileged as it is seen that they are unable to be reformed. Prison is not considered to be an effective method of rehabilitating individuals. As mentioned before, many argue that prison can actually make a person turn to crime rather than turn away from crime. With the view of rehabilitation Community sentences were established. New sentences such as community rehabilitation orders, drug treatment orders and Young offender’s action plan orders were also introduced to help reform offenders. It is one of key aims behind sentencing young offenders. Society may see certain sentences as rewarding to the individual rather than punish. Also pictures of recreational facilities fuel the belief that offenders are treated better than the victim. Statistics also indicated that rehabilitation may be ineffective, due to the high number of offenders who re-offend following release from prison or following community service based sentences.
Denunciation
Denunciation is a reflection society's outrage at the offence committed. It emphasises the criminality of the offence and goes beyond retribution, which considers proportionality. The sentence will send a clear message from society that such behaviour will not be tolerated and in doing so boundaries are established. Denunciation is one of the principles behind our current mandatory life sentence in murder cases. It is argued that this sentence sends a clear message that society as a whole will not tolerate murder and anyone who commits that crime will be dealt with harshly. This can be seen with drink driving which was at one time accepted by society and had light punishment, however today with the majority of society seeing drink driving as unacceptable, punishments have become harsher, with prison and heavy fines now possible.
Reparation
Reparation is a reasonably new aim in sentencing and has come about due to the concern that the victim is ignored in the sentencing process. It is of vital importance that society believes that justice is done. If the victim is ignored in the process then bad feelings are created. Judges and magistrates can now impose sentences which do consider the needs of the individual victim and society. Such orders are often in addition to other sentences and are seen to be effective in making the victim feel part of the justice process and also for the offender to appreciate society views of their crime. A Compensation orders is a form of reparation. Victims of violence or burglaries are often compensated by the defendant. These are often used in addition to other sentences. The defendant may try to offer compensation in their mitigation statement in order to show remorse for what they have done. Under The Powers of Criminal Courts (Sentencing) Act 2000 magistrates or judges must give reasons for not giving a compensation order. Community Punishment orders can also be issued, where the offender is made to complete a set number of hours on a community based project. The aim is to make the offender give something back to society. Such sentences are often used with young offenders.
Retributive and Utilitarian
These aims can be categorised into Retributive and Utilitarian. Retributive aims are based on the principle of an eye for an eye. If the Government wish to appear tough on crimes then retributive sentences will be used. These aims include retribution and denunciation. Utilitarian aims are based on the principle that the sentences achieve a purpose. This may be through protecting society against further crimes or by improving the offender’s behaviour to ensure that they do not offend in the future. These aims include deterrence, incapacitation, rehabilitation and reparation.
(b)
Sentences can be broken down into four main types and they are custodial sentences, community sentences, fines and discharges. The different sentences can often achieve more than one aim for example prison may punish and protect society.
Custodial
The ultimate sanction in English law is a sentence of imprisonment. Whilst many argue that prison has become a lot easier it should not be forgotten that it a person freedom and ability to make choices has been removed. On release from prison a person may have difficulty rebuilding their family life, fitting back into society and obtaining a job with a criminal record, many reoffend and go back to prison. However prison is an effective form of punishment and incapacitation. Whilst prison does achieve a number of aims it is not without its problems. It costs a lot of money to keep individuals in prison. Our prisons are already overcrowded and the Government are having to spend millions on building additional accommodation. Prison does not always work. Crimes continue to take place in prison, few inmates will come out reformed characters and finally it is argued that it does not deter as potential offenders are only concerned about getting caught and do not stop and think about the probable sentence.
Community sentences
An alternative to custodial sentences is Community sentences, such sentences serve a number of purposes, they are a form of punishment as the offender freedom is affected but they may also rehabilitate the offenders and prevent him from re-offending. If theses are not followed then the offender can be brought back to court to be dealt with. There are a number of community sentences available to the courts.
The Community Punishment Order (formerly community service order) is where the offender is required to undertake between 40 and 240 hours on a suitable project over a 12 month period. The court will fix the number of hours and the sessions, usually weekends, in which it should be completed. Such orders include work on conservation sites, painting building, clearing waste land etc. The order is a form of punishment as it deprives the offender of his or her liberty and it is also provides some reparation to society or the victim. Statistics indicate that this is the most effective type of community service order in terms of reoffending. However it is criticised as the number of hours which can be imposed is considered insufficient.
The Community rehabilitation order (formerly a probation order) is another form of punishment the court may use. The offender is placed on probation for a period between 6 months and 3 years. The offender is placed under the supervision of a probation officer and will attend regular meetings to check progress. Additional requirements may also be imposed with this order including residential and treatment orders. Some criticisms that the probation officer is too tolerant and it is consequently seen as a soft option. The aim is one of rehabilitation and not retribution.
The Community punishment and rehabilitation order (formerly combination order) is where the court may combine the above two orders. The aim is to punish the offender by taking away their liberty but also to help the offender through advice and support from the probation officer. Maximum sentence of a 100 hours. In addition the court can order an exclusion order which prohibits the offender from certain places (if over 16 can last for up to 2 years) as well as a drug abstinence order.
A Curfew order is where the offender can be ordered to stay at a fixed address for between 2 and 12 hours in any 24 hour period. The order can last up to 6 months and can now be reinforced by electronic tagging. This is used with young offender with good effect.
An Exclusion order is where the courts have power to exclude offenders from a particular place e.g football grounds. Can last up to two year and section 40, of The Powers of Criminal Courts (Sentencing) Act 2000 applies to this.
The Drug treatment and testing orders was introduced by the Crime and Disorder Act 1998 and is now contained in the Powers of Criminal Courts (Sentencing) Act 2000 section 56. The court may order a drug treatment and testing order to any offender over 16 with their consent. The treatment can be residential or non-residential and the court will set the number of tests to be completed by the offender during a particular time period. The court will also review the offenders progress. Clearly such orders fall within the category of 'individualised sentences'. The court is considering the individual offender and trying to impose a sentence which will help that offender and hopefully stop them from re-offending. There are clear links between drugs and crime and these order hopes to deal with such cases. Unfortunately despite their obvious benefits such orders are not often given due to costs.
Fines
Fines are a particularly important sentence in Magistrates courts. The offender may be fined by the magistrate or judge. The amount of fine set will depend on his financial circumstances and the court. The aim of a fine is to punish and hopefully act as a deterrent. Magistrate can fine up to a maximum of £5,000 (£20,000 if health and safety cases). Crown court can set an unlimited fine.
Discharges
The court may order a conditional or absolute discharge; in such cases the courts do not consider it necessary to punish the individual. Conditional discharges will be imposed to deter the offender from re-offending within a particular time limit (maximum 3 years).