A) Describe the different aims of sentencing.
Written by Rhiannon Scott.
Introduction
When an offender is found guilty following a trial or a plea, judges or magistrates have a range of sentencing options available to them. These options vary depending on the type of offence, as well as the seriousness and the circumstances of the crime.
The judge or magistrates must consider the most suitable response to the crime committed, and what the primary aims of the given sentence are. Retributive justice, intended solely as punishment, is commonly viewed as a paramount aspect of sentencing, yet there are a number of other principles also involved in the process, Often, a sentence will be a combination of aims, intended to serve a number of objectives.
Retribution
Central to retributive justice is the notion of punishment, which should be granted proportionately to the severity of the crime committed to ensure justice is served. Also known as lex talionis (law of retaliation), retribution affirms that a moral response to an offence is an acceptable punishment, regardless of whether the offender will be reformed, or whether crime rates will be reduced.
In the 19th century, this theory was first expressed by philosopher Immanuel Kant in The Metaphysical Elements of Justice. Speakingof retribution as a legal principle, he commented:
‘Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime’.
The quotation from Exodus,“An eye for an eye, a tooth for a tooth", expresses directly the leading principle of retribution, and the basis of this form of law is often expressed under the motto "Let the punishment fit the crime".
Under this, a large aspect of retribution is focused on reprisal, where both the victims and society as a whole are avenged for the offence committed. The revenge aspect of retribution is often used in defence of, arguably, unnecessarily long prison sentences, as well as being used to justify the use of capital punishment in the USA.
The Government have often faced pressure to make significant changes to sentencing in order to make the punishments more proportionate to the offence committed. Evidence of this was seen in the White Paper of 1990 for Crime and Punishment, in which it stated that the objective for all sentences is, ‘the denunciation of and retribution for crime’. Further evidence of this was seen in 1993, when prompted by public opinion, the maximum penalties available for causing death by dangerous or drink driving were increased to ten years’ imprisonment.
The courts have also faced pressure, which was particularly evident in the guidelines laid down by the Court of Appeal. This included the case of R v Aramah (1983), where different tariffs for drug offences were set according to type, value and the amount of drug included, and in R v Billam (1986) in which the Court of Appeal set tariffs for rape.
Denunciation
The act of denunciation is society simply demonstrating its condemnation of criminal activity, by showing both the offender and society that deplorable behavior entails consequences. The Criminal Justice Act 1991 placed both denunciation and retribution as the most important forms of punishment.
In the Royal Commissions Report 1953, Lord Denning approaches denunciation in the following way:
‘Punishment is the way in which society expresses its denunciation of wrong doing, and in order to maintain respect for the law it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.’
The point expressed in this speech is significant, as it reflects the importance of denunciation, and suggests that respect for the law can be maintained by showing the general public that criminal offences will receive suitable punishment. Public opinion is shaped by reinforcing the moral boundaries of acceptable conduct, and changes in the law mean increasingly severe sentences can be imposed. An example of this is drink driving, which over the past few decades has seen changes in public opinion. It is now held by the majority of people to be unacceptable behaviour.
Incapacitation
The term incapacitation refers to specific sentencing that effectively makes the offender incapable of re-offending. Though an extreme and often costly way of sentencing, it is arguably the most effective, serving a purpose for both society as a whole, and for the offender. Notably, the most extreme method of incapacitation is the death penalty, because obviously, a person cannot commit a crime after this sentence.
In Britain, the usual method of incapacitation is administering lengthy prison sentences, thus removing the offender’s right to move freely in society. Long custodial sentences undoubtedly have their merits, particularly when dangerous criminals are concerned, yet incapacitation fails to address the longer-term issues such as rehabilitation. Moreover, given that the cost of incarcerating a prisoner amounts to over £25,000 a year, prison is an expensive way of protecting the public.
Several other methods of incapacitation exist, including the controversial Sharia laws in Islamic countries, and chemical castration in certain American states. The first, involves the amputation of either the hands or feet as a punishment for theft, and the second a form of temporary castration used as a preventative measure, typically for child sex offenders and rapists.
Other less extreme examples existing in the UK include the removal of a driver’s license for driving offences, or curfew orders that ensure the offender is to remain at a given place at certain times.
Deterrence
Deterrence can be placed into two categories, the first- individual deterrence, and the second- general deterrence. The primary aim of individual deterrence is to prevent an individual from re-offending again, whereas general deterrence aims to prevent potential offenders from committing a crime in the first place.
An area of law that focuses specifically on deterrence is the Crime & Disorder Act 1998, which states that any offender found guilty of committing a racially aggravated offence can face more severe punishment. This is often an increase in sentence length, with the aim being to deter potential offenders from displaying racial hostility.
Examples of individual deterrence methods include prison sentences and fines. Supposedly, after the offender has experienced and faced the consequences of these sentences, the idea is that they will be less likely to commit such acts in the future. However, the use of general deterrence is far less frequent, as its value is often doubted, and it relies greatly on publicity to succeed.
Nevertheless, occasionally judges and magistrates will choose to ‘make an example’ of an offender, most commonly when there has been an increase in a particular crime. This was seen in the case of R v Whitton (1985), in which the judge sentenced a football hooligan to life imprisonment, in an attempt to warn other potential offenders that they will face a similar fate.
However, despite these various powers, the effectiveness of deterrence can still be questioned. It can be argued that fear of being caught is a greater deterrent than a sentence, and that serious punishments will not deter people if there is very little chance of being caught to begin with. Fear of detection was proven to be a useful deterrent when it was found there was an 83% reduction in crime on London’s District line when CCTV was used.
Critics also point out that deterrence does not take into account the fact that most crime is committed on the spur of the moment, and instead assumptions are made about criminal behaviour. They argue that offenders generally won’t stop to consider the potential punishment for a crime they are about to commit, especially in the heat of the moment, or when drugs or alcohol are involved. It has been reported by the British Crime Survey that since 1998, crime has increased by around 37.5 %, as well as a report by Prison Statistics, England and Wales, indicating the re-offending rate currently stands at around 75%.
Rehabilitation
Often associated with drug and alcohol abuse, the main aim of this penalty is to reform and rehabilitate the offender, in the hope of altering their future behaviour.
The offender is encouraged to recognise the destructiveness of their behaviour, usually through a combination of education and training. It is hoped that by doing this, it will prevent the person from becoming a recidivist, and will therefore stop them from facing harsher sentencing as a result of persistent offending.
Rehabilitation also plays an important part in reforming young offenders. Often, it is considered that younger offenders have more to gain from rehabilitation that an older offender would, as they are able to ‘turn their life around’ and produce more positive results.
Over the past five years, rehabilitation has become a popular sentence. Many offending behaviour programmes have been set up in prisons, including courses such as anger management, alcohol and drug abuse, victim awareness, and domestic violence.
In all cases, past records and reports will be look at to ensure that they’re a suitable candidate for rehabilitation, and each sentence is aimed at helping the offender’s particular needs. Persistent offenders are usually thought as less likely to respond positively to reformation as they have supposedly become accustomed to a criminal way of life. In relation to this, the Powers of the Criminal Courts (Sentencing) Act 2000 stated that,
‘In considering the seriousness of an offence, the court may take into account any failures to respond to previous rehabilitative sentence’.
When compared to all other aims of sentencing, rehabilitation serves to act in the interest of the offender, rather than punishing them. It plays a vital part in the reformation of drug abusers, who will usually be sent to clinical rehabilitation. Drug treatment and testing orders can last up to three years and reviews are held annually by the court.
However, a problem associated with rehabilitation is that is has fairly low success rates, with around 60% re-offending within two years. Another criticism suggests that rehabilitative sentences discriminate against the underprivileged in society, who may be treated more intensively than offenders from more privileged backgrounds. It is also argued that rehabilitative sentences assume that there is a problem with an individual, rather than the crime committed being a result of a problem in the area they reside in.
Reparation
Reparation is a sentencing aim that involves compensating the victim(s) of a crime, usually by ordering the offender to pay a sum of money to the victim as compensation, or by returning stolen property to the owner.
Today, the courts are required to consider ordering compensation to the victim of a crime, in addition to any other punishment they believe to be appropriate. Under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 courts are under a duty to give reasons if they do not make a compensation order. There have also been some experimental projects to bring offenders and victims together, so that the offenders may make direct reparation, although this is not common practise yet.
Community Punishment Orders can be used as reparation to society as a whole, with the offender working to help society. An example of this includes the participation in removing graffiti or clearing litter from a public place. Fines can also be seen as reparation to society as the money goes to public funds.
Conclusion
The aims of sentencing are subject to change as they are usually dependant on the specific policies of a Government. However, there are always two main themes of sentencing, the first- retributive, and the second- utilitarian. The first involves looking at the offence and punishing for it, whilst the second aims to make the sentence have a positive purpose, for both the offender and for society.
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Introduction
As indicated in the previous question, the courts have a variety of sentencing options available to give an offender, including: custodial sentences, community sentences, fines, and discharges.
However, from time to time sentencing must be assessed to review the current levels of effectiveness for each sentence. Some sentences are successful in achieving their aims; whilst others with lower success rate must be adapted in order to better suit the crime committed.
Custodial sentences
In the UK, a custodial sentence is the most serious punishment that can be imposed by a court. They come in a variety of forms, ranging from ‘weekend’ prison to mandatory life sentences, often depending on the age of the offender.
However, they are meant to be used as a response to serious offences only, and according to Section 152 of the Criminal Justice Act 2003, custodial sentences should only be passed when it is the opinion of the court that the offence:
‘Was so serious that neither a fine alone nor a community sentence can be justified.’
The primary objective of imprisonment of an offender is incapacitation, often due to the interest in public safety. A prison sentence cannot be imposed on anybody under the age of 21, and any mitigating and aggravating features of the case will be assessed and taken into account along with previous criminal records before the sentence is passed.
Imprisonment also acts as a deterrent, both individually and generally. The majority of people are stopped from committing crimes from the knowledge that they could be jeopardising their freedom for many years. Because of this, custodial sentences are usually considered the most effective in terms of deterrence.
However, studies have shown that around 65% of adults re-offend within two years after their release from prison. A possible explanation for this would be that whilst in prison, offenders are able to interact with other offenders, and therefore pick up on advice and techniques, as well as making friends and contacts.
Discretionary life sentences
A prison sentence must be imposed for certain offences, including burglary, rape, and murder. Despite the maximum sentence for these offences being life imprisonment, the judge has discretion in sentencing and can impose any lesser sentence on them when appropriate.
Fixed term sentences
This term describes the type of sentence in which imprisonment is set for a certain amount of time. For all crimes without a mandatory sentence, the length of the given sentence will be affected by several factors. The first is the seriousness of the crime, the second is the defendant’s previous record, and the third is the maximum sentence available for the specific offence. However, a judge is able to impose a set minimum time that must be served before the offender can be released on licence.
Home detention curfew
The Crime and Disorder Act 1998 made special allowances for offenders by letting them be released early from prison, but under the condition of a curfew and electronic tagging. This allows their exact whereabouts to be monitored at all times, therefore incapacitating them. The idea of it is to encourage prisoners to structure their lives, prevent re-offending and to cut the prison population.
This form of sentence greatly supports rehabilitation as it shares similar aims. It requires the released prisoners to remain at a certain address at set times, during which they will be subject to monitoring, through an electronic tag attached to their ankle. Most curfews are set for 12 hours between 7pm and 7am. If the person fails to comply with the conditions of the curfew, they can be recalled to prison. With only 4% of those released on home detention curfew being returned to prison for breach of curfew, it is apparent that this system is working effectively.
Advantages of this sentence include greater cost-effectiveness by having less offenders in prison, as well as returning stability and order back into the lives of both the offender and their family, and decreasing the amount of time an offender spends with other criminals.
However, the obvious downside to this type of sentence is that tagging does not automatically stop a person from committing another crime, although in these circumstances it is unlikely.
Custodial Sentencing for Young Offenders
The issue of whether young offenders, particularly those aged 15 and under, should face custodial sentences has been heavily debated. Many believe that instead of being sent to the so-called ‘universities of crime’, younger people require help and should be provided with an opportunity to change their behaviour. This ‘help’ is best provided by sentencing orders, which keep the offender in the community. There are different types of custodial sentences that can be given, depending of the age of the offender, the crime committed, and whether it is their first offence.
Young Offenders’ Institutions
Offender’s aged 18 to 20 can be sent to a Young offender’s institution, the typical custodial sentencing for young offenders. The purpose is to keep youths separate from older, and often more experienced criminals. Here, they must serve a minimum of twenty one days, and a maximum of what is allowed for that particular offence
Detention and training orders
These were created by the Crime and Disorder Act 1998, lasting a specified period between 4 months and 24 months.
They can be imposed on any offender aged between 12 and 21, although will only be given to youths under the age of 15 if they are persistent offenders.
The order can also extend to 10 to 11 year olds if court believes the public are at risk or needs protection from further offending.
Both of these sentences have elements of incapacitation in them, because they are concerned with the protection of the public. However, there is also an element of deterrence to the sentences, because previously, youths were effectively ‘immune’ from custodial sentences, whereas now, after committing an offence they can be sentenced.
Detention for serious crimes
The courts have additional powers to make an offender be detained for a longer period of time, but only when a serious offence is involved. After the law was amended in 1994, this now includes 10-13 years olds that commit an offence with a maximum sentence of 14 years’ imprisonment, or if they commit a sexual offence against a woman.
For 14 to 17 year olds, this is also available for causing death whilst under the influence of drugs/alcohol or by dangerous driving.
Detention at Her Majesty’s Pleasure
This is an indeterminate sentence that must be given for any offender aged 10 to 17 convicted of murder. The judge working on the case can recommend a set number of years that should be served before release will be considered, although they can be released when considered suitable. If an offender reaches age 21 whilst serving this sentence, they will be transferred to an adult prison.
Community sentences
A common misconception is that community sentencing is ‘an easy way out’; however, it is not a soft option. It combines punishment by changing the offender’s behaviour and by making amends - sometimes directly to the victim of the crime or to society as a whole.
As part of the reforms on sentences by the Criminal Justice Act 2003, the various kinds of community orders for adults have been replaced by a single unified community order with a series of possible requirements.
Available for those aged 16 and upwards, the courts are able to choose different elements to make a community order which is suitable and relevant to that particular offender and the crime(s) they committed.
Section 177 of this Act states a wide range of options available to those that are sentencing, including unpaid work, exclusion requirements, fines, and drug rehabilitation.
The introduction of the Criminal Justice Act 2003 brought about one unified community order that essentially allowed the courts to pick and choose which elements of punishment they wished to employ. This type of sentence has been made available to offenders aged 16 and above.
Unpaid Work Requirement
The court can include an unpaid work requirement as part of the community order, in which the offender will work between 40 and 300 hours on local community projects under close supervision. The clear element to this is reparation, as the offender is effectively repaying their debt to society for their original misdeeds. It is designed to help the offender develop new skills that are beneficial for the community, as well as acting as a deterrent against committing further offences.
Who is it suitable for?
This sentence is most suitable for people whose offences have harmed a community in some way, such as anti-social behaviour or criminal damage. It can also be used for serious one-off incidents such as high level drink-driving or driving without a license.
What will it involve?
Typical sentences usually involve clearing up local beauty spots, removing graffiti from buildings, or putting anti-crime measures in place such as installing alley gates and security locks. These types of sentences are often given in relation to the crime, e.g.: somebody found putting graffiti on a building may be made to clear it off. In other cases, some people may work for individuals, for instance, in a charity shop.
It is argued that type of sentence is particularly effective as it serves a number of purposes. The high level of publicity shows the community that justice is being done, with a beneficial outcome for everybody. It acts as both a deterrent and rehabilitative sentence, because it is generally agreed that there a few things as unsatisfying as doing manual work for free. Because of this, unpaid work seems very effective. The re-offending rates have been shown to be lower in unpaid work requirements than in any other type of community sentence.
Curfew Requirement
Curfew requirements are often imposed by the courts in order to reduce the offender's opportunities for criminal activity, as well as protecting the local community from anti-social behaviour. They can last up to six months, and the order states that the offender must remain at a fixed address, most likely their home, for between 2 and 12 hours in any 24 hour period.
Who is this suitable for?
Curfew requirements are appropriate for offenders aged over 16 who do not require rehabilitative supervision, but where a curfew would provide structure and be a significant punishment. Curfew hours are usually set to the times when offending has taken place, often during the hours of darkness.
What does it involve?
The most effective method of monitoring curfews are with electronic tagging, where the offender is tracked via satellite systems. The tag, either worn on the ankle or wrist, notifies monitoring services if the offender is absent during the curfew hours. The cost of such a program however is very high, estimated at roughly £675 per month for each offender. However, when compared to the cost of imprisonment, an estimated cost of £1,555 per offender, per month, it seems a preferable alternative for smaller offences.
The clearest aim of the curfew system is incapacitation, ensuring public protection by preventing the offender from committing further crime. Obviously, it is still possible for the offender to commit crimes while they are under curfew, but statistics show that over 80% successfully complete their tagging scheme.
Exclusion Orders
This requirement directs that the offender in question must not enter a specified area. This can last for a period of up to two years, and the exclusion can be limited to particular times and at different places for different periods or days.
The main aim of exclusion orders is to incapacitate the offender, making them unable to commit further crime by preventing them from entering certain places where they usually commit a crime. An example would be banning a persistent shoplifter form shopping centers in the area.
Supervision Requirement
This requirement involves an offender being required to attend regular appointments with an Offender Manager from the Probation Service. This allows the activities and behaviour of the offender to be monitored regularly. It can last up to three years, with the subject of the supervision and the frequency of contact being specified in the sentence plan.
During the supervision sessions offenders may have to undertake several things. This includes work to promote behavioural change and motivation, receive counselling, and have their personal activity monitored. In specific cases, an Offender Manager might delegate supervision to another person who can provide the offender with specialised support and advice.
Despite these aims, statistics have shown that an estimated 60% of these offenders will re-offend within 2 years, suggesting that this type of sentence is not effective.
Fines
Fines are penalties available to courts for a wide variety of offences, and are the most common way of disposing of a case in the Magistrates' Courts. Fixed penalty notices are given for less serious offences such as parking tickets, speeding, graffiti and public disorder. Instead of prosecution, a fixed sum of money must be paid to a Magistrates’ Court. Offences that attract fines in the Magistrates’ are subject to maximums from level 1 to level 5.
Level 1: £200
Level 2: £500
Level 3: £1,000
Level 4: £2,500
Level 5: £5,000
However, in the Crown Court there is no limit to the amount that an offender can be fined.
The most obvious aim for this sentence type is reparation, by compensating for damages or stolen goods with money. In other cases, the payment is simply a compensation for any crime, regardless of whether it is related to the actual offence. Deterrence also makes up a part of this sentence, because generally people will be unhappy paying a large fine for an offence such as speeding.
Discharge
Sometimes, a court will make an order to discharge an offender that has been found guilty. This usually happens when, having considered the character and traits of the offender, as well as the nature and circumstances of a crime, the court believe that punishment would not be appropriate. There are two types of discharge that can be imposed:
Absolute discharge
Effectively, this means that no further action will be taken since either the offence was very minor, or the court considers that the experience has been enough of a deterrent. It is also used when an offender is guilty, but is ‘morally blameless’. However, the offender will still receive a criminal record.
Conditional discharge
These are widely used by the Magistrates’ Courts for first-time minor offenders, and the discharge is on the condition that the person will be released and that no further offences will be committed within the next three years. Again, the offender will still receive a criminal record.
Driving Disqualification
When an offender is charged with drink or dangerous driving, the courts have the power to disqualify them from driving. The length of the disqualification will vary depending on the seriousness of the driving offence, and whether the defendant has previous convictions for this offence. Usually, the courts will impose a fine as well as the disqualification.
Drug Rehabilitation Requirement
A Drug Rehabilitation requirement provides fast access to a drug treatment programme with the goal of reducing drug related offending. The main aim of drug treatment is rehabilitation, as it allows the offender to try to change and improve their life.
Who is this sentence suitable for?
This type of sentence is appropriate for all problem drug users aged over 16 that have committed crime to fund their drug habit. They should show willingness to co-operate with the treatment; they cannot be forced if they are not willing to comply. A Drug Rehabilitation Requirement requires both motivation and determination from the offender, but support is provided by Probation and treatment staff in an attempt to help them complete the programme successfully.
What does it involve?
Lasting between six months and three years, the Drug Rehabilitation Requirement aims to help offenders identify what they must do to reduce offending and stop their use of drugs, as well as helping them to achieve realistic ways of changing their lives for the better.
A Community Order with a Drug Rehabilitation Requirement can be reviewed by the court. Failure to stick to the treatment plan will mean returning to court for breaching the order. If this occurs, a different sentence may be considered.
Conclusion
When assessing the various aims of sentencing, the issues and aims that judges and magistrates must consider become apparent. There are many different aspects of sentencing that must be considered, particularly what the most important aims of sentencing are.
It would appear that many sentences have an element of deterrence in them, which is necessary to prevent future crime. Several other also have an element of retribution in them.
However, I believe that rehabilitation should be considered more when it comes to sentencing. It is important to allow offenders the chance to change their lives, rather than simply putting them into prison where they may inevitably become a better criminal than they already were.
Bibliography
The English legal system- Jacqueline Martin
Wikipedia.com
Presentation slides.
Homeoffice.co.uk