Written by Shazneen Munshi
Describe the different aims of sentencing.
In this essay, I am going to describe in detail the various aims of sentencing and then illustrate the ways in which different sentences may be used to support different aims of sentencing. A criminal offence is one where the state prosecutes, tries and sentences an offender on behalf of the community and hopes to send a clear signal that such behaviour is unacceptable. Criminal offences are viewed as serious violations of what is commonly agreed to be normal or acceptable behaviour. When judges or magistrates have to pass a sentence they will not only look at the sentences available, but will also have to decide what they are trying to achieve by the punishment they give to the convicted defendant. The main aims of sentencing include retribution, deterrence, denunciation, incapacitation (protection of the public), rehabilitation and reparation.
Retribution
Firstly, retributive punishment is concerned with the punishment for wrong doing and taking revenge on behalf of the victim and society. It is based on the idea of punishment because the offender deserves punishment for his or her acts. In addition, retribution is only concerned with the offence that was committed without considering the circumstances of the defendant and making sure that the punishment inflicted is in proportion to that offence. The idea of retribution can be summed up by the Old Testament saying ‘an eye for an eye and a tooth for a tooth and a life for a life’. However, retribution, today, is based more on the idea that each offence should have a set tariff. This can be seen in the guidelines laid down by the Court of Appeal which included the case of R v Aramah (1983) where different tariffs for drug offences were spelled out (according to type, value and amount of drug included) and in R V Billam (1986) where the Court of Appeal set out tariffs for rape. The Crime and Disorder Act 1998 now requires the Court of Appeal to consider setting out guidelines when hearing an appropriate appeal on sentence.
Furthermore, in the White Paper of 1990, Crime, Justice and Protecting the Public, reference was made to the need for sentences to achieve ‘just deserts’, stating that punishments should match the harm done, and show society’s disapproval of that harm. However, the problem with this is that other factors often intervene: for example, those whose crime is deemed to ‘fit’ a fine may end up in prison because they are too poor to pay it. So, a fine of £500 might be a very severe penalty for an offender who is unemployed, while the same amount would be negligible to a millionaire. However, the retributive idea is that an offender is punished severely and as a result does not reoffend because he or she wants to avoid future punishment. Therefore, retribution does not seek to reduce crime, alter the offender’s future behaviour or take into consideration the circumstances of the offender (financial, social etc.) but seeks to take revenge against the offender which is proportionate to the crime committed.
Deterrence
Deterrence is concerned with preventing the commission of future crimes and is based on the idea that the prospect of an unpleasant punishment may put people, who might otherwise commit crime, off the idea. This aim of sentencing is to deter both individuals, and people generally in society from committing crime. Individual deterrence is intended to ensure that the offender does not re-offend, through fear of future punishment while general deterrence is aimed at preventing other potential offenders from committing crimes. Both of these are aimed at reducing future levels of crime and prevent it from escalating.
Individual Deterrence
However, it can be argued that the fear of being caught is more of a deterrent than the sentence and that if there is very little chance of being caught and prosecuted for a particular crime, a serious punishment will not deter people from committing that offence. Fear of detection was proved to be a powerful deterrent by the success rate of closed circuit televisions used for surveying areas. For example, there was an 83 per cent reduction in crime on London’s District line in the first fill year that surveillance cameras were used.
Furthermore, critics of the theory or deterrence point out that it makes an assumption about criminal behaviour which is not borne out in practice. It assumes that an offender will stop to consider what the consequences of his actions will be. In fact most crimes are committed on the spur or the moment, and many are committed by offenders who are under the influence of drugs or alcohol which is most likely to impair a person’s capacity for measured consideration. Therefore, these offenders are unlikely to stop and consider the possible consequences of their actions.
The previous Government’s 1990 White Paper pointed out, this is often unrealistic, ‘Deterrence is a principle with much immediate appeal ……. But much crime is committed on impulse, given the opportunity presented by an open window or unlocked door, and it is committed by offenders who live from moment to moment’.
In addition, the social consequences of committing a crime such as the impact/reaction of family and friends may be more likely to act as a deterrent rather than the legal consequences (sentence/fine). Moreover, many serious crimes are ones where the offender is under a great deal of pressure and it may be difficult for a person to think rationally in a tense and emotionally upsetting situation.
Also, some crimes can be considered as ‘one-offs’ which the defendant would never commit again and therefore, it may be unfair in such circumstances to punish the defendant harshly. It can also be questioned whether a potential offender knows what the sentence is for a particular crime and so cannot be deterred by sentences they are not aware of.
In addition, there is some evidence that the deterrent becomes less powerful for habitual criminals. If an offender has been imprisoned a number of times, the punishment seems to lack its sting. The habitual criminal may become accustomed to a ‘criminal way of life’. Therefore, for such a person the fear of a custodial sentence is reduced and the offender sees prison as ‘an occupational hazard’. Overall, reconviction rates indicate that individuals are not deterred by most sanctions as Prison Statistics, England and Wales 1999 indicated that seventy per cent of all offenders released offended again within five years.
General deterrence
Furthermore, the value of general deterrence is even more doubtful as potential offenders are rarely deterred by severe sentences passed onto others. However, the courts do occasionally resort to making an example of an offender in order to warn other potential offenders the type of punishment they face. This is usually where there has been a large increase in a particular type of crime. An example of this occurred in the case of R v Whitton (1985) in which the trial judge passed a sentence of life imprisonment on a football hooligan as a warning to other football hooligans, although the Court of Appeal reduced this to 3 years. Also, general deterrence relies on publicity so that potential offenders are aware of the level of punishment they can expect.
The story may not be sufficiently newsworthy for the media to publish, unless the sentence is exceptionally severe, as in the case of Whitton. So, potential offenders may not be aware of the sentences they may face for certain offences and hence cannot be deterred by harsh sentences for particular crimes.
Therefore, deterrence is in direct conflict with the principle of retribution, since it involves sentencing an offender for a longer term than is deserved which is not in proportion to the specific offence and so is probably the least effective and least fair aim of sentencing.
Denunciation
Denunciation is society expressing its disapproval of criminal activity. The aim of denunciation is to send clear messages about what a society will and will not tolerate and a sentence should indicate both to the offender and other people that society condemns certain types of behaviour. Furthermore, ‘justice must be seen to be done’ in order for the public to restore confidence in the English legal system. This is a very important principle so as to prevent vigilante justice which involves members of the public breaking the law by taking it into their own hands.
When giving written evidence to the Royal Commission on Capital Punishment, Lord Denning described it in this 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’.
Furthermore, denunciation also reinforces the moral boundaries of acceptable conduct and can mould society’s views on the criminality of particular conduct - for example, drink driving is now seen by the majority of people as unacceptable behaviour due to the changes in the law and the increasingly severe sentences that are imposed. Therefore, society’s opinion of drink driving has been changed by sending offenders to prison, banning them from driving and imposing heavy fines and so this type of behaviour as well as the people involved in it are seen to be denounced by society as a whole.
Moreover, the ideas of retribution and denunciation were foremost the concepts behind the Criminal Justice Act 1991. That Act was based on the Government White Paper on Crime and Punishment (1990) which stated that the first objective for all sentence is the denunciation of and retribution for crime.
Incapacitation (protection of the public)
Incapacitation means that in some way the offender is made incapable of re-offending and therefore, this protects society from the criminal activities of the offender. Today in Britain, the usual method of protecting citizens from violent or dangerous individuals is by administering long prison sentences so that the offender’s right to move freely in society is removed. Therefore, as society will feel protected by the removal of criminals from the streets, this will restore their faith in the English legal system. Murder has a mandatory sentence which means the judge has no discretion but to impose a life sentence on the convicted defendant for the protection of society. Rape and other crimes of violence also carry long custodial prison sentences on conviction. Furthermore, if an offender commits a second violent or sexual offence, a life sentence is automatically given. This has been the result of recent legislation under the Crime (Sentences) Act 1997.
However, while long custodial prison sentences have their merits where highly dangerous criminals are concerned by protecting society from them, incapacitation acts as a short term aim of sentencing as it fails to address the long-term issues (such as rehabilitation) and only applies to more serious offences. Moreover, given that the cost of keeping a prisoner ‘inside’ amounts to over £25,000 a year, prison is a very expensive way of protecting the public. In addition, since custody is regarded as a ‘university of crime’, where an offender mixes with other offenders and learns new ideas as well as skills, it could be argued that an individual could emerge from prison as a greater danger to society than before. Therefore, incapacitation is an extremely important aim of sentencing as it necessary to ensure that citizens are protected from violent or dangerous individuals. However, prison could corrupt a criminal even more and it is only a short term solution.
Rehabilitation
The aim of rehabilitation is to reform the offender and rehabilitate him or her back into society, either because they have seen the pain and damage they have caused through their anti-social behaviour or through education and training facilities which have provided an alternative career path for the offender. Therefore, a person will not go back to their old, criminal way of life but will have something positive to offer society when they are released. This aim of sentencing enables the offender to repent and realise the wrong that they have done and is a forward-looking principle, with the hope that the offender’s behaviour will be altered by the penalty imposed, so that he or she will not re-offend in the future (it aims to reduce crime in this way). In the second half of the twentieth century, this aim of sentencing has come to the fore due to the development of sentences such as probation (now called Community Rehabilitation Orders) and community service orders (now called Community Punishment Orders). Furthermore, as the abuse of drugs is the main cause of many offences, there have also been two new community sentences aimed at trying to rehabilitate drug abusers – drug testing and treatment orders and drug abstention orders.
In addition, reformation is a very important element in the sentencing philosophy for young offenders who may be able to use skills learned in prison for useful employment on release and for leisure activities. Therefore, this increases their social prospects as they are given the opportunity to build for the rest of their lives and so there is less likelihood of them re-offending. Furthermore, the aim of rehabilitation opposes the theory of retribution as it addresses the causes of the crime and helps the offender to change while retribution is mainly concerned with revenge against the offender by making sure that the punishment inflicted is in proportion to the offence committed.
However, reformation is also used for some adult offenders. The court will be given information about the defendant’s background, usually through a pre-sentence report prepared by the probation service. Where relevant, the court will consider other factors, such as school reports, job prospects or medical problems.
Individualised sentences
Where the court considers rehabilitation, the sentence used is an individualised one aimed at the needs of the offender. This is in direct contrast to the concept of tariff sentences seen in the aim of retribution where there are set guidelines laid down by the Court of Appeal. However, one of the criticisms of rehabilitation is that it leads to inconsistency in sentencing. Offenders who have committed exactly the same type of offence may be given different sentences as the emphasis is on the individual offender’s needs and circumstances.
Moreover, Bottoms and Preston argue in The Coming Penal Crisis (1980) that rehabilitative sentences are fundamentally flawed as they assume that the problem is with the individual and that all crime is the result of some deficiency or fault in the individual offender rather than a result of the way society is organised. Secondly, rehabilitative sentences tend to discriminate against the underprivileged in society, who are seen as in need of reform, and so they may be treated more intensively than an offender who comes from a more privileged background whose offence tends to be seen as ‘just a terrible mistake’ which is a one-off temporary slip. Thirdly, the process of rehabilitation involves striping away the privacy and dignity of the offender in group therapy sessions and asking prying questions about background and family life. Also, this has included, in some countries, physical interference with the privacy of a criminal in order to change their behaviour by implanting electrodes in the brain or treating sex offenders with hormone drug treatment (chemical castration). Finally, persistent offenders are usually thought less likely to respond to a reformative sentence as they have become accustomed to a ‘criminal way of life’. The Powers of the Criminal Courts (Sentencing) Act 2000 states that, in considering the seriousness of an offence, the court may take into consideration any previous failures to respond to previous sentences.
Reparation
Reparation is aimed at compensating the victim or community for a crime committed against them instead of the state, usually by ordering the offender to pay a sum of money to the victim or to make restitution, for example by returning stolen property to its rightful owner. The idea that criminals should pay compensation to the victims of their crimes dates back to before the Norman Conquest to the Anglo-Saxon courts. In England today, courts are required to consider ordering compensation to the victim of a crime, in addition to any other penalty they may think 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.
In addition, there have also been some experimental projects to bring offenders and victims together, so that the offenders may make direct reparation. However, in the 1998 British Crime Survey, 60 per cent of respondents approved the concept of reparation orders while only 40 per cent would be prepared to meet the offender. Direct reparation could be regarded as a particularly traumatic experience for victims of certain crimes such as rape as they would feel as though they were reliving the offence committed against them again and therefore, this may make the situation worse.
Furthermore, the concept of restitution (recompense) includes making reparation to society as a whole (i.e. Community Punishment Order). Therefore, reparation allows the offender to make amends by giving them the opportunity to offer back something positive to the victim or the community affected by the crime.
Sentencing policy (aims) depends on government policy and the politics of a particular government, therefore sentencing policy changes with various changes of government. However, there are two main themes of sentencing policy, retributive (looking at the crime and punishing for it, revenge on behalf of the victim and society) and utilitarian (aiming to make the sentence fulfil a useful purpose for the individual and the community). In 1997, one of Tony Blair’s election promises was that his government would be ‘tough on crime and tough on the cause of crime’, therefore this displays a utilitarian view on sentencing policy as the offender would be punished but able to reform by the causes of the crime. Whereas, at the same time, Michael Howard (former Conservative Home Secretary) stated ‘prison works’, describing that the only solution to crime was imprisonment and that it is simply best to lock criminals up and throw away the key. Therefore, this does not help the offender to reform and become a more useful member of society.
(b) Illustrate the ways in which different sentences may be used to support different aims of sentencing.
Retribution
Today, retribution is based more on the idea that each offence should have a set tariff which means that people with similar backgrounds who commit similar offences in similar circumstances should receive similar sentences. This can be seen in the guidelines laid down by the Court of Appeal which included the case of R v Aramah (1983) where different tariffs for drug offences were spelled out (according to type, value and amount of drug included) and in R V Billam (1986) where the Court of Appeal set out tariffs for rape. The Crime and Disorder Act 1998 now requires the Court of Appeal to consider setting out guidelines when hearing an appropriate appeal on sentence. Therefore, the use of tariff sentences sets standard punishments which are in proportion to the crime inflicted on the victim by the offender.
In addition, the death penalty for the offence of murder (used in other countries) can be justified by the Old Testament saying ‘an eye for an eye and a tooth for a tooth and a life for a life’ and therefore, this penalty supports the aim of retribution as it is based on punishment which is in direct proportion to the crime committed by the offender. In America, at least one judge has been known to put this theory into practice in other offences, by giving victims of burglary the right to go in, with a law officer to the home of the burglar and take items up to the approximate value of those stolen from them.
In addition, fines act as a means of retribution as they punish the offender by making them pay for the crimes they have committed and the money goes directly to the state. However, fines depend on the income and financial circumstances of the offender and so a fine is calculated accordingly at the discretion of the court but fixed penalty fines (used for parking, speeding etc) have a standard set amount which the offender is required to pay. While fines are used in minor offences, custodial sentences are imposed in more serious (indictable) offences and act as a punishment by depriving the offender of his/her liberty for a certain period of time which is in proportion to the crime committed. However, for any offence, the theory of retribution states that the sentence must be proportionate to the crime.
Deterrence
Individual deterrence
There are several penalties which can be imposed with the aim of deterring the individual offender from committing similar crimes in the future. These include a custodial prison sentence, a suspended sentence or a heavy fine which are seen as unpleasant sentences and therefore, are intended to ensure that the offender does not re-offend through fear of future punishment. Custodial prison sentences and suspended sentences are only available for offenders aged 21 and over and are used to deter potential re-offenders from committing indictable offences as well as triable-either way offences while heavy fines are usually imposed for summary offences (criminal damage, driving offences). In addition, young offenders can receive custodial sentences at Young Offenders’ Institutions which are available for those aged between 18-21 years old and so they can also be deterred through fear of punishment if they re-offend in the future. However, prison does not appear to deter as about 55 per cent of adult prisoners re-offend within two years of release while with young offenders, custodial sentences have less of a deterrent effect.
General deterrence
Furthermore, general deterrence can be achieved when courts make an example of an offender by imposing a long, severe sentence on them and therefore, this warns and deters other potential offenders of the type of punishment they may face if they commit a similar crime. This principle can be seen in the case of R v Whitton (1985) in which the trial judge passed a sentence of life imprisonment on a football hooligan as a warning to other football hooligans, although the sentence was subsequently reduced to 3 years by the Court of Appeal.
Denunciation
Denunciation can be achieved by imposing a sentence which reflects the blameworthiness of the offence by society and therefore, sends a clear message about the types of behaviour that society condemns. For example, drink driving is now seen by the majority of people as unacceptable behaviour due to the changes in the law and the increasingly severe sentences that are imposed. Therefore, society’s opinion of drink driving has been changed by sending offenders to prison, banning them from driving and imposing heavy fines and so this type of behaviour as well as the people involved in it are seen to be denounced by society as a whole. Other examples include crimes such as rape and paedophilia which have sentences that aim to indicate, both to the offender and other people, that society disapproves of these types of behaviour.
Incapacitation
The ultimate method of incapacitation is the death penalty and in some middle-eastern countries the hands of thieves are cut off. This supports the aim of incapacitation as the offender is made incapable of re-offending and therefore, this protects society from the criminal activities of the offender. Another controversial method of incapacitation is the use in some American states of medical means to incapacitate sex offenders (chemical castration), and thus ensure they cannot re-offend.
Today in Britain, the usual method of protecting citizens from violent or dangerous individuals is by administering long custodial prison sentences so that the offender’s right to move freely in society is removed. This is shown by the Powers of Criminal Courts (Sentencing) Act 2000 in which section 79 states that a prison sentence should only be imposed where the offence is so serious that imprisonment is justified, or where the offence is a violent or sexual crime and only such a sentence would be adequate to protect the public. Murder has a mandatory sentence which means the judge has no discretion but to impose a life sentence on the convicted defendant for the protection of society. Rape and other crimes of violence also carry long custodial prison sentences on conviction. Furthermore, if an offender commits a second violent or sexual offence, a life sentence is automatically given. This has been the result of recent legislation under the Crime (Sentences) Act 1997. Also, the use of minimum sentences for habitual offenders is aimed at protecting the public.
In addition, electronic tagging of offenders is also a method of protecting the public from the offender without having to send the offender to prison and can be used to monitor offenders in Curfew Orders where they are required to remain at a fixed address for between 2 and 12 hours in any 24 hour period. Therefore, this supports the aim of incapacitation as the offender is made incapable of offending as he/she will be closely monitored and restricts the offender’s right to move freely in society.
Moreover, there are other penalties that can be viewed as incapacitating the offender – for example in driving offences, the offender can be banned from driving. There is also a move towards using community based sentences that will incapacitate the offender in the short term and protect the public. These include exclusion orders under which an offender is banned from going to the place where he offends (usually a pub or a football ground), and curfew orders which order an offender to remain at a given address for certain times of the day or the night (can be enforced by electronic tagging where suitable).
Rehabilitation
The aim of rehabilitation can be achieved by sentencing the offender to a Community Rehabilitation Order which places the offender under the supervision of a probation officer who offers guidance to the offender and helps them to fit back into society as well as reform their behaviour. Unfortunately, some see the issue of a Community Rehabilitation Order as a soft option. However, it is offered instead of prison and so in one sense is a lot less drastic. Prison provides a far less effective environment for rehabilitation of the offender.
In addition, Community Punishment Orders require the offender to work for between 40 and 240 hours on a suitable project organised by the probation service (e.g. painting school buildings) which allows the offender to repent and realise the wrong that they have done through punishment. However, this sentence also involves a degree of rehabilitation and of compensation to the community as a whole. Therefore, Community Rehabilitation Orders and Community Punishment Orders allow the offender to repent, reform and gives them the opportunity to offer society something positive when they are released or during their sentence.
Furthermore, as the abuse of drugs is the main cause of many offences, there have also been two new community sentences aimed at trying to rehabilitate drug abusers – drug testing and treatment orders and drug abstinence orders which seek to reform the offender through treatment and regular tests which review the offender’s progress or by ordering the offender to abstain from using drugs for between six months and three years. Also, where the court considers rehabilitation, an individualised sentence is used which is aimed at the needs of the offender. However, with more courses being made available in prisons, prison sentences may increasingly be seen to be achieving the goal of rehabilitation.
Reparation
Reparation can be achieved through Compensation Orders or Community Punishment Orders which are aimed at compensating the victim or community for a crime inflicted upon them. A Compensation Order involves the court ordering the defendant to pay a sum of money to his victim to compensate for the crime (injuries) that he has inflicted on the victim or to make restitution which means that if the offender still has the stolen property he obtained from the victim, the courts can order that the property is returned to its rightful owner.
Moreover, the concept of restitution (recompense) includes making reparation to society as a whole and therefore, Community Punishments orders which require the offender to work for between 40 and 240 hours on a suitable project organised by the probation service, allows the offender to compensate and make amends by giving them the opportunity to offer something positive back to the community (e.g. painting school buildings). Furthermore, there have also been some experimental projects to bring offenders and victims together, so that the offenders may make direct reparation to the victim. For example, the offender may be made to apologise directly to the victim or may give help in repairing the damage caused by their offending conduct such as the cleaning of graffiti. The order may also be combined with a compensation order if the court considers that financial compensation would also be appropriate.
Reforms
The Home Office undertook a major review into the effects of punishments, published in July 2001. The Halliday Report investigated the effectiveness of the sentencing framework in England and Wales. It attempted to suggest improvements in the current arrangements, which were seen as unsatisfactory by many people. In all, there were 55 major reforms, including the targeting of persistent offenders who are not deterred by the fear of a custodial sentence, research into the contribution of sentencing to crime reduction, increasing the severity of the sentence when the offender has recent convictions, greater predictability in sentencing so that the sentencing practice would have a greater deterrent effect on potential offender and using imprisonment only as a last resort as the effect of imprisonment on the individual offender is usually negative ( become more hardened –prison regarded as a ‘university of crime’). Finally, a review of mandatory minimum sentences was proposed so that judges could have more flexibility.
Conclusion
In conclusion, sentencing has many aims which include punishing the offender for the crimes he has committed and making sure that the punishment inflicted is in proportion to that offence (Retribution), deterring the offender and other potential offenders from committing future crimes by imposing harsh sentences (Deterrence), helping the offender to reform his behaviour and fit back into the society (Rehabilitation), making the offender incapable of re-offending by removing his right to move freely in society and so protecting society as a result (incapacitation), compensating society and/or the victim for the offender’s criminal behaviour (reparation) and expressing society’s disapproval of criminal activity (Denunciation). The aims of sentencing all have various advantages and disadvantages to the victim and the community as well as fulfilling different purposes.
Finally, there are many different ways in which various sentences may be used to support the different aims of sentencing and some sentences can be used to achieve more than one aim – for example, a long custodial prison sentence may be retributive and also protect society. Also, a court can impose a combination of different sentences on an offender as there may be a variety of aims to be achieved relating to the circumstances of that particular offence. In addition, the Halliday report has proposed many reforms in order to improve our present system of sentencing.
Shazneen Munshi (February 2005)