Written by Aoife Corbett
The law officers
who give sentences to defendants are judges and magistrates. When it comes to
them that they will have to pass a sentence to a defendant, they will not just
look at available sentences, they will also have to decide what they are trying
to achieve by the punishment they give. There are 6 different aims of
sentencing, these can also be conflicting. They are retribution, denunciation, incapacitation,
deterrence, rehabilitation and reparation.
This is the idea of giving a punishment
because the defendant deserves a punishment because of their actions. It is not
a punishment that will try and reduce this type of crime or try to stop the
offender from reoffending.
In the 19th
century Kant expressed his views in The Metaphysical Elements Of Justice, where
he wrote:
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 crimeı.
From this we can
derive that retribution is only concerned with the offence that was committed
and making sure that the punishment given to the defendant is in direct
proportion to the offence.
Retribution can also be seen in the bible
where it is written an eye for an eye, a tooth for a tooth, and a life for a
lifeı. When a murder was committed and the death penalty was the punishment,
this is how it was justified.
In the White Paper
of 1990, Crime, Justice and protecting the public, reference was made to the
need for sentences to achieve just desertsı, and also stating that punishments
should match the harm done, and also show societyıs disapproval of that harm.
But the problem
with retribution is that other external factor can intervene with their
sentence. For example, if a defendants sentence is to pay a fine, but they
cannot afford to pay it as they are too poor they could end up serving a prison
sentence.
The choice of
punishment can also be affected by whether the offender comes from a stable
background with a job, they are more likely to get a non-custodial sentence
than those without.
Denunciation is a
way of showing societyıs disapproval of criminal activity. Sentencing has a
message to both the defendant and the public, to say that society condemns this
type of behaviour and that justice is being done.
Lord Denning
described denunciation as:
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 themı
This is also known
as the protection of the public, the idea of this sentence is that the
punishment must serve a useful purpose. This means that it serves a purpose for
society as a whole, or that it will help the offender in some way.
Incapacitation
means that in some way the offender is made incapable of re-offending.
This can be the
best option when highly dangerous offenders are concerned, but it is an
extremely expensive way of dealing with crime prevention.
It is also known
that prison is the place where criminals pick up new ideas and techniques, so
then maybe prison is ultimately counter productive.
We can say that
the ultimate method of incapacitation is the death penalty, so there is no way
of re-offending. In some countries the hands of thieves are cut off to stop them
re-offending.
This is generally
concerned with preventing future crimes, with the idea that the prospect of an
unpleasant punishment will put people off the idea of committing that crime.
This can be split
into 2 sections, individual deterrence and general deterrence.
Where individual
deterrence is intended to ensure that the offender does not re-offend, through
a fear of future punishment.
General deterrence
has a different aim to individual deterrence as it is aimed at preventing other
potential offenders from committing crimes.
But there is a
similarity of both, that they are both aimed at reducing future levels of
crimes.
But, there can be
problems with using punishment as a deterrence, as its effectiveness depends on
the chances of detection. Deterrence will not stop certain crimes being
committed if the chances of getting caught are low.
Another means for
deterrence to work is that the offender must stop and think about what they are
about to do to be able to remember the consequences of their actions. But this
is unlikely to happen as most crime is committed on impulse, where people live
on moments of opportunities. It is unrealistic to believe that they will stop
and think before they commit their crime(s).
The main aim of
rehabilitation is to reform the offender and rehabilitate him or her into
society, so that they are less likely to commit offences in the future. This is
either because they either learn to see the harm they are causing to society or
because they learn through education, training and other forms of help. It is
an aim that looks into the future of the defendant. It has the hope that the
offenderıs behaviour will be altered by the penalty imposed, so they will not
re-offend in the future.
Bottoms and
Preston argue against rehabilitation as a sensible aim in The Coming Penal
Crisis (1980), they believe
rehabilitation sentences to be fundamentally flawed. They believe that these
sentences assume that all crime is the result of some deficiency or fault on
the offender, but some people argue that crime is actually a result of the way
society is organized.
It is also said
that rehabilitation sentence are discriminative against the less advantaged in
society, these people are seen as in need of reform. But when a person from a
well off background commits a crime, their offence is seen as a temporary slip,
or a miss-hap.
So, from this we
can see that the sentences given to offenders is not dictated by the harm
caused, but by the background of the offender. Is this fair? No.
This is aimed at
compensating the victim of the crime, usually by ordering the offender to pay a
sum of money to the victim or to make restitution, for example returning stolen
property.
Some projects have
also included bring together the offender and the victim to make a direct
reparation, so that they can make contact.
The idea of
restitution includes making reparation to society as a whole, usually in the
form of community punishment orders where offenders are required to work a
certain amount of hours on a community project whilst being supervised.
(ii) ILLUSTRATE THE WAYS IN WHICH
DEFFERENT SENTENCES MAY BE USED TO SUPPORT DIFFERENT AIMS OF SENTENCING
The courts have
many different types of sentences available to give to an offender, custodial
sentences, community sentences, fines and discharges.
CUSTODIAL
SENTENCES
The type of
custodial sentence will depend entirely on the age of the offender as there are
different custodial sentences available for different age groups.
The Powers of Criminal
Courts Act 2000 states that a custodial sentence should not be passed
unless the court considers that the crime was so serious that only a prison
sentence is justified.
When considering
the seriousness of the offence, the court may take into account any previous
convictions and aggravating and mitigating features.
A custodial
sentence would be advised for such offences as assaulting an on duty police
officer and burglary of a residential property.
Prison
Sentences
Imprisonment is
only available to offenders over the age of 21.
The length of
sentence will depend on many things like the maximum and minimum sentences
available for the particular crime, the seriousness of the crime and the
defendantıs previous record.
Most of those
given custodial sentences do not serve the whole sentence, many serve only three-quarters
of their sentence or even just half, depending on good behaviour.
Prison sentences
have a certain retributive element because this is the idea of giving an
offender a punishment because they deserve a punishment, that when someone does
something wrong they should be punished. But the type of sentence suitable for
achieving retribution would depend on the gravity of the offence. The more
serious the offence, the more likely that a custodial sentence would be
required.
But prison can
also be seen as deterrence, for crimes such as murder, rape and race related
crimes where the offender will be sent to prison, the thought of the punishment
will deter some people. It can also be said that deterrence doesnıt fully work
as many crimes are made on impulse, it unusual for a personal to plan them. So
therefore, to say an offender will think about a crime before committing it and
think of the consequences to make deterrence possible, is not very likely.
Imprisonment is
also a protection of society, where the offender is locked away and cannot harm
another person until their release, unless it under investigation as to whether
they will be released. Such in the case of Myra Hindley where she committed
many murders, it has been said by the Home Secretary that she will serve a
whole-life tariff, where she will never leave prison in the protection of
society, although this will not be the case due to her death. This is not a
regular occurrence, there are currently 23 prisoners subject to whole-life
tariff.
Rehabilitation can
also be an aim of imprisonment, because while they are in prison they can work
on learning about their crime and what effects it has on other people. It is
also possible to further you education while in prison. It has been known that prisoners
have come out of prison with a degree in a subject. With the gaining of a
degree while in prison, it can be said that they are looking towards the
future, this is another aim of rehabilitation.
Home Detention
Curfew
The Crime And
Disorder Act 1998 allows early release from prison on the condition that a
curfew condition is included. The period of curfew is increased with the length
of sentence. Each prisoner doesnıt have the automatic right to curfew order,
they must be assessed to see if they are suitable.
This requires the
released prisoners to remain at a certain address at set times during which
period they will be subject to electronic monitoring, through an electronic tag
on their ankle. Most curfews are set for 12 hours between 7pm and 7am. The
person can be recalled to prison if they fail to comply with the conditions of
the curfew.
With only 4% of
those released on home detention curfew were returned to prison for breach of
curfew, we can see that this system seems to be working.
But about 65% of
offenders released from prison are reconvicted within 2 years. Prisoners spend
time with other criminals, and it is from them who they frequently gain new
ideas for criminal enterprises.
It is also said
that prison punishes not only the offender, but the offenderıs family to, with
financial difficulties and the misery of being parted from the prisoner can
often be the breakdown of the family.
Short prison
sentences make no sense from either the view of the protection of the public or
the prevention of re-offending. It combines the maximum disruption of the offenderıs
lives in terms of loss of job, home, community ties, and with minimum scope for
rehabilitative work.
Home curfew orders
are seen to incapacitate the offender, because it is making the offender unable
to commit a further crime due to the fact that they must stay indoors for at
least 12 hours in the day. So there are not many crimes that they can commit
whilst being unable to leave the house. So, from this society is protected from
the offender making another crime.
Only an adult
offender may receive a suspended sentence of up to 2 years, the maximum is 6
months on the Magistrates Court. This means that the sentence will not commence
immediately, there will be a fixed time agreed and if during this time an
offence if not committed then the offender will not have to serve their
suspended sentence. But, if they do offend again then they will have to serve
their previous sentence and be re-sentenced for their current offence, so in
effect serve 2 sentences.
A suspended
sentence should only be given where the offence is so serious that an immediate
custodial sentence would have been appropriate, but there are exceptional
circumstances in the case that justify suspending the sentence.
Suspended prison
sentences are a form of denunciation, because although the offender isnıt
actually serving their sentence until further notice, there is a clear warning
that if another offence occurs then they will. The disapproval of society is
shown through the pending sentence.
It can also be
seen as rehabilitation, because it is giving the offender a second chance to
show that this was a one off, that it was a mistake. It is there chance to show
that they will not re-offend, it will help them to understand their crime and
be able to reintegrate them back into society, and prove that their crime was a
mistake.
There are many
different types of custodial sentences that can be give, depending of the age,
offence and if this is their first offence.
This was created
by The Crime And Disorder Act 1998, the minimum sentence is 4 months and
the maximum sentence is 24 months.
A detention and
training order can be passed on offenders from the age of 12 to the age of 21.
but for an offender aged less than 15, to be given this they must be a persistent
offender.
Both these
sentences available for young offenders are with the idea of protecting the
public, so incapacitation. Where the offender is incapable of committing
another crime and society is protected.
Sometimes they can
be a deterrent to young offenders, as they know that they cannot be sent to
prison because of their age. But now when they commit an offence they can be
sentenced and sent somewhere, so this can help to deter.
The Powers of
the Criminal Courts Act 2000 uses 5 community orders which can be used in
sentencing offenders over the age of 16.
These include:
community rehabilitation orders, community punishment orders, community
punishment and rehabilitation orders, curfew orders and drug treatment and
testing orders.
Since the Criminal
Justice and Courts Services Act 2000 has created 2 extra community
sentences: exclusion orders and drug abstinence orders.
Community
Rehabilitation Order
The sentence
places the offender under the supervision of a probation officer for a period
of between 6 months and 3 years. During this time the offender must keep in
regular contact with the probation officer and leave their life of crime.
They will also
have a residence order which requires the offender to live at a certain
address, an order that the defendant must take part in specified activities for
up to 60 days. There is a condition that the offender must attend a probation
centre and if a problem is shown then the offender must be treated for drug or
alcohol addiction.
These conditions
show that the main aim of this sentence is to rehabilitate the offender, as
they are trying to reform the offenderıs behaviour. Although this is the aim,
about 60% of offenders are reconvicted within 2 years.
Community
Punishment Order
This requires the
offender to work for between 40 and 240 hours on a suitable project organised
by the probation service.
The type of work
will vary depending on the type of schemes the local probation service is
running. The offender may have to paint school buildings or pick up litter in
their local community.
The main aim of
this sentence is to rehabilitate the offender, to change their ways of life for
the future, to make them see there is another way of living their life. Their
punishment is usually related to the offence they committed, for example if
their offence was graffiti then their punishment may be to clean their graffiti
and/or other peoples. This will help to discourage them to re-offend, the aim
of rehabilitation. This is also the aim of reparation, to make good the harm
they have caused. If they undo the crime they have committed, this is possible
for a crime such as graffiti.
Curfew Orders
With this sentence
an offender can be ordered to remain at a fixed address for between 2 to 12
hours in any 24 hour period. This can last for up to 6 months and may be
enforced with electronic tagging.
The cost of
tagging can be quite expensive, estimated at £675 per offender per month. But
if you compare this with the cost of keeping an offender in prison it is much lower. The cost of keeping
an offender in prison is about £1,555 per month per offender.
Curfew orders are
a form on protecting the public, so incapacitation. A curfew order will make
the offender incapable of re-offending as many crimes are made during
unsociable hours and this offender will have a curfew where they cannot leave
the house and therefore unable to commit many crimes, so society is protected.
Drug Treatment
And Testing Orders
This community
penalty of drug treatment and testing is for offenders aged 16 and over. This
order can last for between 6 months and 3 years, but an order can only be made
if the offender is willing to comply with it.
The court must hold
reviews of the order in which the offender must attend at court and a written
report of progress, including results of drug testing.
This has the aim
of rehabilitation, the offender must want to change their ways for this order
to be given as it will only be given with their willingness. So therefore,
offenders given this order want to go back into society and live a crime-free
life.
Exclusion
Orders
This is where the
offender is ordered not to go to a certain place. The order can be for specific
days of the year or hours of the day. This is so the offender is kept away from
areas where they are most likely to commit a crime.
For those over 16
the maximum order is 2 years but for those under 16 the maximum is 3 months.
The aim of
exclusion orders is to incapacitate the offender, to make them unable to commit
further crime by not letting them go to certain places where they usually
commit a crime. This is also protecting the public of who go to that place.
FINES
In the Magistrates
Courts, this is the most common way of disposing of a case. The maximum fine is
£5,000 for an individual offender.
But for businesses who have committed various legislative offences, a
fine of up to £20,000 can be imposed.
But a problem with
using fines as a sentence is the high level of non payment. This leads to the
punishment being ineffective and the imprisonment of non paying offenders.
This is mainly the
aim of reparation, whereby the offender pays a sum of money to the victim so
either compensate them for goods broken or stolen or just as a repayment for a
crime committed. For the offender to try and restore what has been lost to the
victim.
But it also has
the aim of deterrence, where the offender will be deterred from their crime
with the thought of having to pay a heavy fine.
DISQUALIFICATION
Disqualification
from driving
When an offender
is charged with a driving offence, the courts may also have the power to
disqualify that person from driving for a certain period of time. The length of
the disqualification will depend on the seriousness of the driving offence.
The aim of this is
to incapacitate the offender, to stop them from committing this crime again and
to protect society.
Aoife Corbett
31st January 2005.