Forensics - Custodial Sentencing

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The aims of sentencing

There are four main aims of sentencing:

  • Retribution
  • Detterence
  • Rehabilitation (or reform)
  • Protection of society
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Retribution

  • This simply means punishment of the offender that has broken a rule
  • The offender will recieve a punishment that reflects the seriousness of the crime and the level of moral fault
  • Society 'gets their own back' on the offender, by making them pay for their crime
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Deterrence

  • The purpose here is to deter others from commiting crime
  • Individual deterrence is to prevent the offender from committing the same crime in the future
  • General deterrence aims to deter the rest of the population from committing the same crime (vicarious reinforcement)
  • Home office figures on recidivism (persistent commiting of crime or reoffending) show that 70% of offenders who recieve custodial sentences go on to reoffend within two years of release, so prison may not be an effective detterent.
  • This suggests deterrence is unlikely to reduce the amount of crime in general, or prevent the individual from reoffending in the future.
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Rehabilitation (or reform)

  • The aim is to 'cure' the offender from the deviance. For example, drugs, which could've been what made the offender commit the crime in the first place. This is an attempt to lower recidivism rates.
  • Effective counselling and educational programmes are required in prisons to treat drug offenders, and therefore to reduce recidivism. 
  • However, this is optional when in prison, and high recidivism rates suggest that many criminals aren't reformed by their prison experience.
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Protection of society

  • Serious offenders, such as those who commit **** or murder, should be imprisoned to protect other people in society from becoming victims.
  • The Criminal Justice Act (1991) focused on the rights of citizens to feel protected in their society
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The effectiveness of custodial sentencing

Psychological effects

  • For many offenders, imprisonment can be brutal, demeaning and devestating (Bartol 1995.) 
  • It is very difficult to generalise the psychological effects of imprisonment as individuals cope with prison life in different ways, prison regimes can vary and there is a lack of longitudinal studies in this area. 
  • Nevertheless, a common initial reaction to imprisonment is one of depression, guilt and anxiety.
  • Bukshel and Kilmann (1980) found symptoms such as restlessness, anxiety and sleeplessness tend to occur at the beginning of the term of imprisonment where adjustment to prison life has to be made.
  • Imprisonment can have negative effects on mental health, and for a small number of offenders, the experience of prison is too much and they commit suicide, attempt it, or engage in deliberate self harm. Topp (1979) estimated that the suicide rate for prisoners serving longer than 18 months is 65 per 100,000, which is much higher than the general population (16 per 100,000 males, 5 per 100,000 females).
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Zimbardo (1971)

  • Wanted to investigate the situational, rather than dispositional causes of negative behaviour, and thought patterns in prison settings with 'normal' participants playing the role of guards and prisoners.
  • A 'mock prison' was set up, and 22 male participants were randomly allocated a 'guard' or a 'prisoner.' Guards were given prison uniform, such as mirrored sunglasses, and prisoners were given their uniform, including identification numbers, a lock and chain around the ankle. The prisoners remained in the prison for 24 hours a day and folowed a strict regime. Prison guards were given no specific instructions, other than to 'maintain a reasonable degree of order within the prison, necessary for it's effective functioning' and a clear ban on physical violence.
  • The experiment had to be stopped after 6 days due to the extreme reactions of both the prisoners and the guards. The prisoners showed negative emotions such as depression, crying, fits of anger and nearly all had to be released early. The guards showed pleasure at the power that had been given to them. They dehumanised the prisoners by only allowing them to eat as a privilege, made the prisoners stand in one position for hours and verbally insulted them until they begged for forgiveness.
  • It was the prison situation itself that caused the behaviour, rather than their own, innate perosnalities.
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Zimbardo evaluation

  • The experiment was ethically approved and all the participants had recieved and signed an inform conset document beforehand. The participants knew they were taking part in an experiment, but may not have been aware just how realistic their term of imprisonment would be. Zimbardo stopped the experiment early but ensured the debriefing and assesment of all participants took place weeks, months and even years afterwards.
  • Zimbardo's role play prison situation lacks ecological validity. The experimenters themselves admitted that factors such as the length of sentence and lack of physical violence had an effect on the guard's and prisoners' behaviour and, therefore, the overall results.
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Evaluation of custodial sentencing

  • Glaser (1993) suggests that perhaps community sentencing is a better option as prisons can often reinforce criminal behaviour particularly for 'low risk' offenders.
  • Because the offenders are among other offenders 24 hours a day, and 7 days a week, prisons have often been called 'universities for crime' where young offenders learn from the older ones (differential association theory.)
  • The length of custodial sentencing does not necesarily have an effect on reducing recidivism.
  • Walker and Farrington (1981) found that length of sentence made little difference to whether or not the offender went on to reoffend.
  • Davies and Raymond (2000) are heavily critical of the four aims of sentencing. They argue that prison sentences are often giving in response to public demand rather than as a means of reducing recidivism - they do not deter drug addicts for example.
  • Prisons are not necessarily effective as a deterrent - it is unlikely to deter an offender who commited a 'crime of passion' when they lost emotional control.
  • Custodial sentencing aims at reducing recidivism rates, but statistics suggest it is not effective.
  • Cullen and Minchin (2000) followed prisoners released in 1996, and found that 57% reoffended within 2 years and this was 76% for young offenders. Rates of recidivism vary on the type of crime, with 77% for those convicted of burgulary, and 18% for sex offenders.
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Evaluation of custodial sentencing

  • The loss of contact with family and the distruption of employment makes it difficult for the offender to stay out of trouble upon release. 
  • Prisonation or institutionalisation can occur, which involves changes in lifestyle, such as eating and sleeping habits, to adopting prison ****, and the acceptance of certain norms to reinforce the notion of 'us' and 'them'. The person becomes 'involved' in the roles associated with prison and these conflict with those in general society. This makes it very difficult to adjust on release and the more time spent in prison, the more likely one is to reoffend.
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Why doesn't prison work?

Behaviourists would argue that punishment is an effective supressant of behaviour, only under specific conditions: it must be probable  (follow the targeted behaviour) , prompt and aversive (must be genuinely unplesant.)

In the case of imprisonment, these standards are generally not met. There may be a long delay between the commiting of the offence and the punishment. Also the offender may benefit from the offence (like through financial gain) and therefore the short term reinforcements may outweigh the long term punishments.

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Alternatives to custodial sentencing

  • Absolute or conditional discharge
  • Fines
  • Community orders
  • ASBOs
  • Probation
  • Electronic tagging
  • Resorative justice

These alternatives to prison mean that family contacts and perhaps employment can be maintained, which may reduce te chance of reoffending. Non custodial sentences are far less expensive than prison, and some evidence suggests that they can be more effective as recidivism rates are comparable or improved

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Absolute or conditional discharge

  • The offender is not necessarily given a 'sentence', but if the discharge is conditional, they will be sentenced by the judge for the original offence, if another offence of the same type is committed within a specified period. 
  • This period may not exceed three years
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Fines

  • Fines are a sum of money that the offender is ordered to pay to the State. 
  • This is the most common form of non-custodial sentencing, and is often imposed for motoring offences.
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Community orders

Was made to improve the community sentencing regime and produce a more flexible and responsive approach to sentencing.

  • Community rehabilitation order Applies to offenders over 16, and the offender is placed under the supervision of a probation officer. The period of the order is no less than 6 months, or more than 3 years. The order may contain requirements, such as drug and alcohol dependancy treatment, curfews, exclusions and so on.
  • Community punishment order Applies to offenders over 16, and the offender has to carry out unpaid work for the benfit of the community. The work should be completed within a year, and last between 40 to 240 hours.
  • Community punishment and rehabilitation order Applies to offenders over 16, and is a combination of community rehabilitation order and community punishment order. The offender is supervised by a probation officer for between one and three years, as well as undertaking community work for between 40 and 100 hours. 
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Restorative justice

This involves bringing the victim (if willing) and the offender together, under supervised conditions. One purpose of this is to allow the victim to question the offender and perhaps try and resolve any anger they may have, such as why they were targeted. These meetings make the offender see the consequences of their actions for a person, rather than just the breach of the law.

Restorative justice can be used as an alternative to prosecution, particularly with young offenders, and may act as a final warning. It can also be used as an addition to sentencing (Eg, with community service.) The process of restorative justice could involve face-to-face meetings as well as pratical reparation such as repairing damage done.

Sherman and Strang found recidivism rates were less in both adults and young offenders for resorative justice than custodial sentencing. Positive outcomes were also evident in victims, such as reduction in PTSS symptoms and a desire for revenge was reduced. Andres and Botna also found that it can lead to a reduction of recidivism rates.

However, many studies are incomplete due to the high rates of victims and offenders dropping out of the programme before it has finished.

Many victims are reluctant to meet to offender and the offender may not feel remorse, just seeing restorative justice as an easy way out.

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Electronic tagging

This involves fiting the offender with an electronic tagger that's usually strapped to their ankle. This enables their whereabouts to be monitored and aims to reduce opportunities for further crime. The tag is usually used together with a curfew order that restricts the times during which the offender is allowed out of their home. If the curfew is broken, the person is rearrested and faces further penalty.

Electronic tagging can be used instead of a prison sentence, and can be imposed for up to 6 months with a curfew of between 2 and 12 hours per day.

Cassidy et al (2005) found tagging tended to be used for the more persistent offenders with around 7 offences. Tagging resulted in a 7% decrease in the number of offenders breaking bail conditions. Interviews with offenders showed that tagging gave them an excuse they could use with friends to help them stay out of trouble.

Tagging is far less expensive than prison and helps reduce pressure on the growing prison population. Tagging costs around £15 a day compared to the £75 cost of prison a day.

Tagging provides the offender with structure that can help prevent them from slipping back into old habits. It helps them maintain family relationships and continue to work, but the restrictions imposed by the curfew can pose a strain on family relationships as they cannot fully join in in family activities.

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