a) Describe the different aims of sentencing

Transcription

1 a) Describe the different aims of sentencing Introduction When an individual commits a crime they are taken to court, if he/she is found guilty they are sentenced. It does not matter how rich or famous this individual is, since every single person is equal before the law. The aims of sentencing vary depending on the situation, though they all have one thing in common; to punish the offender. According to section 142 of the Criminal Justice Act 2003 there are five main aims of sentencing: to punish offender, reduce crime, reform and rehabilitate offender, protect the public, and to make reparations (from criminal to victim). 1 All of which have a designated title for what they achieve: retribution, denunciation, incapacitation, deterrence, reform/rehabilitation, and reparation which will all be discussed below. Retribution Retribution is aimed at the offender recognizing that he/she has done something wrong and deserves to be punished. The popular saying an eye for an eye is in fact used to justify the worst form of retribution; death sentence for the offence of murder, different from the moral that is used to stop children misbehaving. Retribution is sometimes viewed as revenge ; however vengeance indicates imposing harm on the offender out of anger for the individual s wrong doing. Whereas retribution is a rational theory that offenders deserve a punishment fitting to the crime. 2 The idea of retribution was expressed in the nineteenth century by Kant in The Metaphysical Elements of Justice where he wrote about the judicial punishments and how they cannot always be promoting good for the criminals themselves or for the civil society, instead the punishment should all be imposed on the criminal. Kant is simply stating that; retribution is only concerned with the offence that was committed and making sure that the punishment that is inflicted is in proportion to the offence. 3 The idea of retribution was the main focus in the Conservative Government s White Paper Crime, Justice and Protecting the public (1990). The government s aim repeated several times; was to ensure that offenders received their just deserts 4 which is theoretically retribution this is why retribution exists; so that the offender gets punished for the level of offence, dealing fairness towards the offender and victim. Denunciation Denunciation is not included in the Purposes of Sentencing set out in the Criminal Justice Act 2003; however is still a very useful and important aim of sentencing. The aim of denunciation is to show the society s disapproval of criminal activity. The sentence comes with a message to both the offender and the public implying that society condemns certain types of behavior; this threat is revealed in the harshness of the sentence. 5 The use of distributing a hidden message 1 Aims of sentencing: see as; exchange.co.uk/resource/120/ 2 Should the death penalty be used for retribution?: see as; 3 J. Martin (2010), The English Legal System, UK: Hachette, p C. Elliot & F. Quinn (2002), AS Law, Essex: Pearson Education, p Aims of sentencing: see as; exchange.co.uk/resource/120/ 1

2 out to the public is a way of showing that society does not tolerate the offences as well as providing evidence to show something is actually happening. Lord Denning when giving written evidence to the Royal Commission on Capital Punishment described denunciation as a way of punishing so that society expresses the offence s wrong doing; Denning believed in order to maintain respect for the law it is important that punishments inflicted for grave crimes should be reflected on a great majority of citizens. 6 Denunciation also reinforces moral boundaries of acceptable conduct, it can mould society s views; a successful example of this is drink driving, which is now viewed by the majority of people as unacceptable behavior 7 this is largely because of the changes in law and the increasingly severe sentences imposed which is theoretically, denunciation. Incapacitation Incapacitation also known as protection of the public is the concept of which the punishment must serve a useful purpose in society, and will help the offender in some way. 8 This is not to say the offender goes unpunished; in fact incapacitation means that in some way the offender is made incapable of re- offending. The more extreme methods of incapacitation are the death penalties, and in some countries the hands of thieves are cut off to prevent them from re- offending. 9 Needless to say there are also less extreme methods, such as driving bans and curfews. An offender can also be banned from going to places where they are likely to commit an offence; the use of such banning is shown in R v Winkler (2004). In this case the defendant committed an affray in Manchester when attending a football match in which the team he supported was playing Oldham Athletic, the judge banned the defendant from going to Oldham town center on home match days, and also from approaching within half a mile of any football stadium; both bans were for a period of six years. 10 This can be seen as an example following the Criminal Justice Act 2003 in which a defendant can be sentenced to imprisonment for public protection. This is where the court believes that there is a significant risk to members of the public of serious harm being caused by the offender in the future. Deterrence Deterrence comes in two forms; individual deterrence and general deterrence. Both of which are aimed at reducing future levels of crime. 11 Individual deterrence is concerned with punishing the individual offender in hope that they will not offend again. There are several penalties that can be imposed with the aim of deterring the individual offender for committing similar crimes in the future; these include prison sentences, suspended sentence or heavy fines. However, prisons do not appear to deter prisoners since 55% of adult prisoners re- offend within two years of release. 12 The theory of individual deterrence is that the offender will stop and consider the consequences of their actions before committing another crime. However, it 6 J. Martin (2008), OCR Law for AS, UK: Hachette, p.86 7 Ibid 8 Aims of sentencing: see as; exchange.co.uk/resource/120/ 9 J. Martin (2010), op.cit, p J. Martin (2008), op.cit, p J. Martin (2010), op.cit, p Ibid 2

3 can be pointed out that fear of being caught is more of a deterrent. The other type of deterrence is general deterrence. General deterrence is aimed at preventing people in general from committing crimes by threat of punishment if caught. To achieve this, the courts occasionally resort to making an example of an offender in order to warn other potential offenders of the punishments they may face. However this relies on publicity, or else no one will know what the punishments that criminals face therefore will not be threatened not to do the crime. The use of publicity can be seen in the case of R v Whitton (1985), in which a football hooligan was sentenced to life imprisonment, this set out an example to other football hooligans of the consequences their actions may have. 13 Reform/Rehabilitation This is the aim of reforming the offender and rehabilitating them back into society. In which the offender s behavior is altered by the penalty imposed, so that he/she will not offend in the future. This principle of sentencing came from the second half of the twentieth century with the development of community sentences. 14 Rehabilitation can be seen in drug abuse, seeing how the abuse of drugs is the cause of many offences, in which drug testing and treatment orders are done aimed at trying to rehabilitate drug abusers. Reformation is very important when sentencing young offenders, and can also be used for some adult offenders. The court is given information about the defendant s background; typically the pre- sentence report is prepared by the probation service. Where relevant, the court will consider other factors, such as school reports, job prospects, or medical problems. 15 Reparations The last aim of sentencing is reparation; this is aimed at compensating the victim of the crime usually by commanding the offender to pay a sum of money to the victim. The idea that criminals should pay compensation to the victims of their crimes is one that goes back to before the Norman Conquest to the Anglo- Saxon courts which is seen as a very useful and fair sentencing aim. 16 In England today, the courts are required to consider ordering compensation to the victim of a crime. 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. 17 Another phrase direct reparation is similar, but does not include money instead they bring offenders and victims together for apologies and such. Examples of reparations can be by returning stolen property to its rightful owner etc. A wider scale reparation payment can be seen after the First World War, when the Allies demanded from the Central Powers compensation for all the damages that was done during the conflict, an allied reparations committee was set up and in 1921 made Germany pay 22 billion in annual installments C. Wallace, A) Describe the different aims of sentencing: see as; 3%20Wallace.pdf 14 J. Martin (2008), op.cit, p J. Martin (2008), op.cit, p J. Martin (2010), op.cit, p Ibid 18 Reparations: Nazi Germany: see as; 3

4 Conclusion The idea of reparation is the longest standing aim of sentencing, dating from the Norman Conquest to the Anglo- Saxon times. However, it is not always the fairest of aims. For example; an offender does criminal activity on a public building, then fair enough they pay compensation to the society. However when an offender murders someone s family member, then would compensation be enough to please friends/family of the victim? Which is exactly why sentencing can include more than just one aim, for this particular situation reparation can go with retribution, denunciation etc. Judges consider all the different aims of sentencing before actually sentencing the offender. To sum up; aims of sentencing go about punishing the criminal for the offence, in a fair way; matching the weight of the crime to the sentence which can be seen in all of these aims of sentencing. Bibliography. Elliot, C. & F. Quinn (2002), AS Law, Essex: Pearson Education /Germany- end- World- War- One- reparations- 92- years- 59m- final- payment.html exchange.co.uk/resource/120/ 3%20Wallace.pdf 7%20Bhatti.pdf Render.pdf of- sentencing Martin, J. (2008), OCR Law for AS, UK: Hachette Martin, J. (2010), The English Legal System, UK: Hachette 4

5 b) Illustrate the ways in which different sentences may be used to support different aims of sentencing. Introduction In recent years there has been a large number of legislation trying to control and regulate the sentencing practices of judges. The key pieces of legislation have been consolidated in the Powers of Criminal Courts Act 2000; which states that any defendant that has been found guilty, must be decided first what category of sentence is appropriate and then the amount, duration and form of that sentence. 19 According to the piece of legislation, defendants found guilty must be decided first what category of sentence is appropriate, this refers to the different aims of sentencing, which are considered before the magistrate and judges enforce a sentence. The judge can enforce many different types of sentences, though the most common four types of sentencing which will be discussed below are; custodial sentences, community sentences, fines, and discharges. Each type of sentencing is supported by different aims of sentencing, either from just the one aim or a lot of aims. Custodial Sentences A custodial sentence is the most serious form of punishment that a court can impose; according to section 152 of the Criminal Justice Act 2003 custodial sentences are only meant to be used for serious offences, they range from weekend prison to life imprisonment. There are different kinds of custodial sentences, they include: mandatory and discretionary life sentences, fixed term sentences, custody plus, intermittent custody, and suspended sentences. The age of the offender is important when sentencing, since custodial sentences are different in relation to young offenders, as defined in section 76 of the Powers of Criminal Courts Act 2000, for a person 18 or over, it is a sentence of imprisonment or a suspended sentence. For a person under 18, a custodial sentence includes detention in young offenders institution or a sentence of custody for life. The court must state its reason for imposing a custodial sentence. 20 Mandatory life sentences is the only sentence a judge can impose for murder, however, according to section 269 of the Criminal Justice Act 2003, the judge can state the minimum number of year imprisonment that the offender must serve before being eligible for release on license. 21 A whole- life term is enforced when the offence falls into one of the following: murder of two or more people, murder of a child, murder done for the purpose of advancing a political, religious or ideological cause, or a murder by an offender previously convicted of murder. 22 Mandatory life sentences falls under the category of retribution, incapacitation, denunciation and deterrence. Retribution because of the idea that the criminal is being punished for his/her offence, an eye for an eye life for a life the criminal has taken a life, and therefore his/her life will be taken away via dying slowly in prison. Mandatory life sentence supports incapacitation because the offender has no way of re- offending, by putting him/her behind bars it is protecting the public, as well as showing society disapproval 19 C. Elliot & F. Quinn (2002), AS Law, Essex: Pearson Education, p J. Martin (2010), The English Legal System, UK: Hachette, p J. Martin (2010), op.cit, p Ibid 5

6 denunciation. Lastly mandatory life sentences support the aims of individual deterrence and general deterrence, individual deterrence is supported because the offender cannot re- offend and general deterrence is supported since the offenders imprisonment sets out an example for other people via threats of life sentences. Discretionary life sentences When the judge feels the offender does not deserve a life sentence because of reasons that may be morally right, instead the judge has discretion in sentencing and can give any lesser sentence were appropriate, this can even be a fine or a discharge. 23 This supports the aim of reparation because compensation is being paid; only if the offender is fined. Fixed- term sentences For crimes that are not murder related the length of the sentence will depend on several factors, such as the maximum sentence available for the particular crime, seriousness of the crime, and the defendant s previous record. Imprisonment for a set number of months or years is called a fixed- term sentence. 24 However, prisoners do not serve the whole of the sentence passed by the court; anyone sent to prison is automatically released after they have served half of the sentence. 25 The aims of sentencing that a fixed- term sentence supports include: retribution, denunciation and elements of deterrence. Retribution is supported because the court takes the seriousness of the crime in account when sentencing, therefore the court is dealing the same punishment to what the offender deserves. Denunciation, because it puts the offender behind bars which shows the society disapproves of such actions. Fixed- term sentences only occasionally support deterrence; it s true that the individual is punished; however it s not totally safe to say whether the offender will repeat the offence. Fixed- term sentences do not support rehabilitation, incapacitation and reparation; because the criminal does not learn to control his/her habits, does not serve a useful purpose for the society as a whole, and does not pay back any compensation. Home Detention Curfew The Crime and Disorder Act 1998 allows early release from prison on condition that a curfew is included. The period of curfew increases depending on the length of sentence. However, there is no automatic right to be released on curfew; each prisoner is assessed to see if he/she is suitable. 26 The reason for home detention curfew is to encourage recently released prisoners to structure their lives more effectively as well as to prevent re- offending; the prison population will also be reduced. Home detention curfew only supports incapacitation, since the criminal is allowed out therefore increasing space for new criminals this serves a useful purpose in society. What home detention curfew does not support are: retribution, deterrence, rehabilitation, reparation, and denunciation. The criminal is allowed out of prison early, therefore does not show that criminals get what they deserve retribution, this can have an effect on the public in which they may not be deterred from committing the same crime due to lighter sentences deterrence. The criminal does not learn to control his/her bad habits rehabilitation, does not pay any compensation reparation; and by letting the criminal out early shows that home detention curfew does not support 23 J. Martin (2010), op.cit, p J. Martin (2008), OCR Law for AS, UK: Hachette, p Ibid 26 J. Martin (2008), op.cit, pg 92 6

7 denunciation the society does not show disapproval of such criminal activity by letting the offender out. Community Sentences The Criminal Justice Act 2003 created one community order under which the court can combine any requirements they think are necessary. This means a sentence of one or more community orders, including community rehabilitation orders, community punishment orders, curfew orders, exclusion orders, drug treatment and testing orders, and drug abstinence orders. This effectively targets the aims of rehabilitation, which sets out punishments that alters the offender s behavior so that he/she will not offend in the future. This type of sentencing is available for offenders aged 16 and over. The full list of requirements available to the courts is set out in section 177 of the Criminal Justice Act Which states Where a person aged 16 or over is convicted of an offence, the court by or before which he is convicted may make an order imposing on him any one or more of the following requirements: as unpaid work requirement, an activity requirement, a programme requirement, a prohibited activity requirement, a curfew requirement, an exclusion requirement, a residence requirement, a mental health treatment requirement, a drug rehabilitation requirement, a supervision requirement, and in the case where the offender is aged under 25, an attendance centre requirement. 27 As shown there are many different requirements, most are self- explanatory, the main ones will be discussed below. Unpaid work requirement This requires the offender to work for between 40 to 300 hours on a suitable project organized by the probation service. The exact number of hours is fixed by the court, and then usually worked in eight- hour sessions, often at weekends. The type of work involved varies depending on the schemes of the local probation service running. 28 Such works include: painting school buildings, building play centers etc. This type of sentencing supports the ideas of retribution, deterrence, incapacitation, denunciation and elements of reparations. Retribution and slight parts of reparation because the offender is repaying his/her debt to society through their contributions to local projects, the contribution nature focuses on incapacitation as the punishment serves a useful purpose in society (painting schools etc.) The individual will likely get deterred from committing the crime again by all the hard work ( hours) which also shows society disapproval denunciation. Curfew requirements An offender with a curfew requirement must remain at a fixed address between 2 to 12 hours. This order can last for up to six months and may be enforced by electronic tagging. However, courts can only issue such an order if there is an arrangement for monitoring curfews in their area, such monitoring can be done by spot- checks, with security firms sending someone to make sure that the offender is at home. The cost of tagging is roughly 676 pounds per offender a month. However, this is cheaper than keeping an offender in prison which is roughly 1,555 pounds per month for each offender. 29 The use of Curfew s supports aims such as: retribution, incapacitation and a slight element of rehabilitation. Retribution is supported because the offender is being punished, the aim incapacitation is 27 J. Martin (2008), op.cit, p Ibid 29 J. Martin (2008), op.cit, p.196 7

8 supported because the punishment does support society as a whole; as stated above it saves around 900 pounds. Curfew requirements only slightly support rehabilitation; the offender is not allowed out which means there will not be any criminal activity, nevertheless it is not certain whether he/she will commit offences after the sentence is over. Fines A fine may be imposed for almost any offence other than murder. Some courts such as the magistrates court carry out a set maximum, depending on the offence; the highest is 5,000 pounds. Though there is no maximum in the Crown Court. The courts must ensure that the amount of the fine reflects the seriousness of the offence, they must also take into account the offender s means, reducing or increasing it as a result Powers of Criminal Courts Act The magistrates courts can arrange a deduction of a fine from the offender s earnings, which is known as the attachment of earnings order when imposing the fine or following a failure to pay. The use of fines supports the aims of: retribution, deterrence, incapacitation, reparation, and denunciation. Retribution is supported because of the rule on the amount that can be fined; which should be the same amount in which they deserve, the more the amount may leave a scar on the offender and he/she may decide that he/she cannot afford to be caught again meaning they are less likely to repeat the offence deterrence. Incapacitation is supported as the punishment serves a useful purpose to society, by giving back what the offenders owe; in money which can be used to better the society. Reparation is supported because the offender is giving compensation for his/her actions. Lastly denunciation is supported as it shows that society disapproves the criminal activity, which is shown by the amount of money the offender is charged. In retrospect if the amount of money is not that much for an offence that is considered big then this type of sentencing will do the opposite of denunciation. Discharges There are two types of discharges; a conditional discharge and an absolute discharge. A condition discharge means that the court discharges an offender on the condition that no further offence is committed during a set period of up to three years. If the offender re- offends within the time limit, the court can then impose another sentence in place of the conditional discharge. An absolute discharge means that, no penalty is imposed. Such a penalty is likely to be used where an offender is technically guilty but morally blameless. 31 Discharge cases normally do not come with a serious offence, discharges are not supported by any aims, because they do not match the offence of the criminal (especially not absolute), they do not punish the offender nor threaten the public, they do not rehabilitate the offender, they do not help society as a whole, nor compensate the victim, and they do not reflect society s disapproval as they are being let out. 30 C. Elliot & F. Quinn (2002), op.cit, p J. Martin (2010), op.cit, p.196 8

9 Disqualification from Driving A disqualification is sentenced when a defendant is charged with a driving offence; the courts have the power to disqualify that person from driving for a certain amount of time. 32 The length of the disqualification will depend on the seriousness of the driving offence retribution. Usually the courts impose a fine as well as disqualifications. Disqualification from driving supports the aims: retribution, deterrence, incapacitation, and denunciation. Deterrence is supported because the offender cannot offend again until the period of time disqualified is over. Incapacitation is supported as the punishment proves useful to the society; since the driver cannot damage government owned property with reckless driving. Lastly denunciation is supported through the disqualification from driving will alert other drivers to be more careful. Conclusion There are many different sentences which reflect the different aims of sentencing. The pattern found in the paragraphs above show that the more aims of sentencing that is supported by the sentencing proves the most useful. A popular aim of sentencing was retribution which occurred one of the most amount of times in the different types of sentencing. This demonstrates that retribution is therefore one of the most considered aim of sentencing, mainly due to the fact that offenders deserve to be punished equal to their offence. However, it is down to the judge to choose the relevant sentence that supports the aims of sentencing, keeping in mind to benefit the society as well as the offender. Bibliography. Elliot, C. & F. Quinn (2002), AS Law, Essex: Pearson Education %20Bhatti.pdf Render.pdf 6.htm Martin, J. (2008), OCR Law for AS, UK: Hachette Martin, J. (2010), The English Legal System, UK: Hachette 32 J. Martin (2010), op.cit, p.197 9