Sentencing

Sentencing

1. The goal of sentencing is to establish the best possible option, which takes into account community factors such as safety, the needs of the victim and the needs of the convicted person.

   • Individual Deterrence
     • The aim is to stop the specific individual from engaging in the same offending behaviour in the future by teaching them that crime does not pay.
       • The person may not reoffend because; it was a once off, another suitable opportunity may not arise, rehabilitation may have occurred, they may get a job, or simply grow up (criminal activity is a young mans job, the peak age for violent crimes is 18 and property offences 16. The rate of offending typically declines at 30.
   • General Deterrence
     • The goal of this is to stop others from engaging in similar offending behaviour by the threat of anticipated punishment. It is particularly important where the offence in prevalent, public safety is at issue, the offence is hard to detect, it involves a breach of trust, or vulnerable groups need protection.
       • Austraian Law Reform Commission recommended that it not be adopted as an objective of sentencing on the basis that sentences should be commensurate with the seriousness of the offence committed. It is unfair to pass heavier sanctions on a particular person because of what others might do.
       • Marginal deterrance - Whether there is a direct correlation between the severity of the sanction and the prevalence of the offence.
         • Deterenace is directed at those capable of making rational assessments about the pros and cons of criminal conduct, so therefore it only works in cases that are planned.
       • States with high abortion rates in the 70s had bigger drops in crime in the 90s. For every 10% rise in abortion, there was a 1% decrease in crime. This could be due to the fact that women from disadvantaged groups chose abortion after it was egalised in the 70s (their babies would have been most likely to commit crimes as adults.
       • Absolute deterrence - Any relationship between criminal sanction and criminal offences. Melbourne 1923 1/3 of the Vic police force were sacked and mobs of thousands looted shops and caused property damage.
         • There is a correlation between incidence of violent offending and use of imprisonment, but the length of imprisonment is irrelevant.
         • The most important consideration regarding deterrence is not the penalty but the perceived likelihood of apprehension.
           • Zero tolerance policing in NY - The rates of violent and property crime have fallen annually since 1992 with an overall reduction of 35%
   • Incapacitation
     • The aim of this is to stop the specific individual from engaging in all offending behaviour by placing them in a secure environment.
     • All sanctions involve some degree of supervision such as probation, license cancellation, community work orders: all limit the opportunity for further offending.
       • Prison is the most effective at incapacitation, but it doesn't garuntee success. While in prison inmates have the opportunity to damage property, and assault others.
     • In the US the imprisonment rate is about 600 per 100,000. this is an increase in over 500% in the past 2 decades. In Australia it is approximately 142 per 100,000. In Englad the detention rate is 116 per 100,000.
     • Community Preotection - Confining offenders prevents them from causing further harm in the community. However incapacitation may lead to more crime on release due to the brutalising effect of jail. There is no firm data on whether prison increases the crime rate by facilitating the spread of criminal knowledge. We cannot distinguish with confidence between those who will and will not reoffend. Those who are classified as serious offenders are no more likely to reoffend than ordinary offenders.
     • General incapacitation - Imprisoning large numbers of offenders on the basis that they have committed a crime, irrespective of their perceived likelihood of reoffending. Calafornias tougher sending laws meant an increase in the jail population but no decrease in the crime rate. 3 strikes sentencing policy imposes mandatory long jail terms on repeat offenders. In calafornia an offender with one prior violent or serious felony conviction must be sentenced to double the term they would have received for the new offence. Offenders with 2 or more such convictions must be sentenced to life imprisonment: with the minimum term being the greater of 25 years, three times the term of the offence, or the applicable term for the offence plus appropriate enhancements. The 3 strike rule had no observable influence on serious crime rate.
   • Retribution
     • The aim of this is is to take something of value from the offender
   • Rehabiltation
     • The goal is to try and change the individual so that they no longer wish to engage in offending behaviour. It involves the renunciation of wrongdoing by the offender and the reestablishment of the offender as an honourable law abiding citizen.
       • e.g. drug and alcohol programs, anger management courses, Cognitive behavioural programs that encourage offenders to think before acting and consider the consequence of their actions. Educational and skills courses.
       • It is generally not pursued for its own ends, but because it may fulfil another sentencing objective, such as community protection.
       • Community orders available are: curfew orders, community service orders, drug treatment and testing orders, probation and combined orders.
     • There is some evidence that it can work for a small portion of offenders and no evidence that it cannot work for everyone.
   • Natural equilibrium - there are more potential criminals at any point in time then there are opportunities to act, therefore if one criminal is removed from circulation another one simply takes their place.
   • UK - Offenders with 5 or more previous convictions have an 87% chance of being convicted of another offence within 6 years. In Australia 2/3 of prison inmates have already served time in prison.

2. Custiodial Sentence

3. Semi Custodial Sentence

4. Non-custodial Sentence

   • Diversion
     • Drug courts - Courts for non-violent substance-abusing offenders (generally first offenders). The goal is to make a forum in which everyone including law enforcement, the judge, the defines and social services attempt to work together to provide the best possible post-conviction environment for the offender. Drug Courts costs about $5,000 a person. Ultimately, if you don’t treat the addiction you will find that person in prison for the rest of their life, at the cost of $15,000 to 25,000 a year. Of the thousands that enrol in Drug Court only half graduate but of those who do, nine out of ten stay sober and live a better life.
     • Sentencing Circles - Generally provided for Indigenous offenders. The goal is to provide community based forum that works with the judiciary to an create effective sentence that will best ensure the offender will not reoffend. As an expression of government legislative policy, circle courts are established at locations approved by the Attorney General. a circle court draws upon the most important and valuable asset that any society can have; its sense of community. By doing so, it attempts to make a real difference for victims of crime, communities and in the attitude of offenders.
       • Adequate but not excessive punishment for wrongdoing, recognition of the harm done to the victim, deterring an offender from further misconduct and ultimately striving to achieve the goal of rehabilitating an offender back into society are some of the things a court has to take into account when dealing with people who break the law. Circle sentencing extends these aims by giving back to the Aboriginal communities a sense of accountability and involvement.
         • Circle courts endeavour to make offenders realise the impact their behaviour has on Aboriginal communities and on the wider community and to provide opportunity for change. Emphasis is placed on traditional relationships between members of the community, elders and respected persons to explore the background to offending and to consider ways in which the Aboriginal community can assist the offender to change their attitude and conduct. The role of the Magistrate is to assist the members of the circle and acknowledge the importance of their contribution. The role of the circle is to arrive at a sentence that meets the expectations of justice.
     • Drug Treatment Alternative to Prison (DTAP) - A deferred sentencing program targeting repeat drug abusing felons arrested for drug sales. They are required to plead guilty and spend 18-24 months in residential treatment
     • The removal of prison bound offenders from incarceration and their placement in some kind of community based supervision or treatment. Recent programs focus on offenders with special needs, emphasise structured treatment interventions and are designed to relieve prison overcrowding. They minimise social stigma, save taxpayer money and enhance public safety.
     • Early example - TASC Treatment Alternatives to Street Crime created functioning partnerships between local courts and human services organisations.

5. Post conviction assessments

   • Placement - This assessment is done to establish the environment and type of service that best reflects the needs of society and those of the offender e.g. Level of Service Inventory (LSI). It is a quantitative survey of offender attributes and their situations relevant to level of supervision and treatment decisions. Designed for ages 16 and older
   • Dangerousness - Psychopathy Checklist Revised (PCL-R) assessment is used to establish how much of a danger the offender is to himself and others.
   • Competent to Execute (US) - Based on the 8th Amendment hi biting against cruel and unusual punishment.

6. Rentry & Recidivism

   • Reentry - the transition from incarceration to community living.They must learn to become an autonomous and productive member of the community. Begins well before the inmate is released from prison. Effective reentry programs engage offenders prior to the end of their incarceration and adopt a comprehensive case management approach to assist them in acquiring the life skills they need.
     • Ex offenders who recidivited after completing a coerced residential drug abuse treatment tended to be younger, have more juvenile arrests, disliked their treatment experiences, were unemployed and living alone.
     • Recidivism risks - 3 types. 1)treatment engagement (perceived excess of treatment). 2) life-style inducing health conditions (HIV, gunshot and stab wounds). 3) Social isolation (no or few children, living alone, living with different people after treatment).
       • Those who perceived the length of treatment as too long or the rules unfair were more likely to be re-arrested. Signifying a failed engagement in treatment. Treatment engagement is fundamental in effective treatment. Engaged participants bond with therapists, endorse treatment goals, involve more deeply in program activities, interact with other clients and report higher satisfaction. It enhances treatment retention and post treatment outcomes. cognitive habits known as criminal thinking form the biggest barriers to engagement.
       • Lower recidivism amongst people with HIV could be attributed to the more regimented life routines imposed by the need to manage their condition. They are also under very close monitoring by their doctors and counsellors. They also qualify for government assistance. The external surveillance, demands and undoing provide essential control, structure and support to their lives. In contrast, past stab and gunshot wounds increase rearrest. victims live in similar disorganised neighbourhoods, maintain similar risky lifestyles.
       • Freedom from childcare responsibilities, failure to return to the same family networks, and living alone all increased risk of recidivism.The informal social control exercised by these interpersonal webs constrain former offenders from committing new crimes.