Sentencing Within the Criminal Justice System - Essay Example

1 Introduction It is widely accepted that sentencing within the criminal justice system serves a number of related purposes. First it serves to punish offenders. It does this by depriving offenders of liberty, property, other rights and freedoms. Secondly, sentencing serves to reduce crime. It does this through deterrence; either the specific deterrence ore the individual sentenced for a crime or the general deterrence of others who are discouraged from crime by what they see happening to offenders. This is also accomplished through incapacitation; while in prison or in the community under restrictions, there will be limited opportunity to commit further offences.. Also through reform and rehabilitation; there are measures forming part of a sentence which may help to change the way offenders behave and to reduce the risk of them reoffending. Third, sentencing may allow reparation to the victims of an offence or those otherwise harmed by an offence. Reparation may be directed to a victim (for example the payment of financial compensation), or it may be indirect (for example unpaid work done for the wider community) Finally, sentencing serves to maintain public confidence in the rule of law. It does so not only when it meets the three purposes already described but through the symbolism of sentencing when it is seen to mark appropriately the seriousness of an offence. In the Haliday report, the principles of sentencing are required to be; proportionate, consistent, free from improper discrimination, compliant with human rights, and transparent. A court will take into account the seriousness of the offence, and whether they are 2 aggravating or mitigating factors which are generally not set out in legislation. Aggravating factors pointing to a larger sentence include relevant previous convictions, whether the offence was committed while on bail, whether excessive violence was used, whether the victim was engaged in public service or was old and vulnerable. Mitigating factors pointing to a shorter sentence include, young age at the time of the offence, the past character of the offender, the degree of provocation, and whether the defendant pleaded guilty. Clearly the sentence in any particular case will depend on the individual circumstances and it is therefore difficult to compare cases without being aware of the background of facts. In Northern Ireland and England, sentences are assisted by guideline cases which help to ensure consistency in decision making. 3 Sentencing The criminal Justice Act 2003 made a number of changes to the sentencing framework for England and Wales. These stemmed from recommendations of the Halliday report, Making Punishments Work" in July 2001. Northern Ireland Ministers recognized that there were equivalent issues to be addressed in Northern Ireland. The sentencing framework in Northern Ireland differs somewhat from that in England and Wales, but not substantially. The notable difference is in relation to imprisonment and its aftermath; In England and Wales, with the exception of short term sentences, time spent in prison is linked to a period spent in the community under supervision and with conditions attached. In addition, sentences of four or more years are subject to discretionary release on the decision of the Parole Board. However, the Criminal Justice Act 2003 in England and Wales changes that position. The Criminal Justice Act 2003 in section 2.1 addresses the issue of custodial sentences of 12 months or more, whereas an adult offender receives a custodial sentence of at least 12 months, but less than 4 years will automatically be released at the half way point and will then be supervised under license until the three quarter point of the sentence. The problem here is, the last quarter of the sentence has no effect on the offender unless he or she commits another offence. Additionally, there is good news for the authorities and perceived bad news for the public; When the offender leaves custodial confinement, the government will immediately begin to accrue savings on the 86,000 pounds which it cost to house him in the previous year. For the community at large perceives that another criminal has been placed on the streets before he/she has received the full amount of their rehabilitation. 4 Moreover, the public feels this is not a good policy in the paradigm of full payment on the debt which they owe society for committing an offence. Also, the public is not thoroughly convinced that the criminal amongst them does not jeopardize their health and well-being. Section 2.1.2 encompasses the new framework and ostensibly the impact of a custodial sentence will be more severe since the period in custody and under supervision will be for the whole of the sentence term set by the court. In Northern Ireland, with two exceptions, the principles of sentencing are not set aside in statute. These exceptions ate the Criminal Justice Order (NI) 1996, which introduced the concept that the sentence should be commensurate with the seriousness of the offence (or associated offences), but which also allow longer sentences in relation to violent or sexual offences where it was considered necessary to protect the public from serious harm, and the Criminal Justice (No2) (Northern Ireland) order 2004, which provides for statutory aggravation of penalties to offences motivated by hatred based on racism, religion, gender or disability. In general in Northern Ireland, in making the sentencing decision, the sentencer is given a significant level of discretion within an overall maximum set by law. In Northern Ireland and England although there are mechanisms set up to establish consistency; such as guideline cases from the Court of Appeals, which also assist in eliminating the prospect of discrimination and ensuing that judicial independence is not compromised. Even with the application of these safeguards for consistency it may still lead to unacceptable public outcomes. For example, it is an established principle underpinned by international conventions that young offenders should not be treated less severely than 5 adults. It is also the case that, when sentencing, a court may take into account the effect of different sentences on the welfare of dependents, although not to the exclusion of other factors. As Haliday noted, sentencing needs not only to be fair but to be seen to be fair.This means not only must the convicted offender, the victim and the public should know what the sentence means in practical terms but also the reason for it is clear. The Lord Chief Justice, Lord Philips of Worth Matrarers in a recent speech at Oxford University, said, "such is the atmosphere of sentencers are criticized for failing to lock up offenders longer, but without examination as to the explanation given by the judge or the statutory framework in which it is imposed. Media pressure such as this can not fail to have an effect on the public, on politicians and on judges" (Lord Phillips 2006) Lord Phillips criticized sections of the media for encouraging an atmosphere of for retribution of offenders. He also said a section of the media is guilty of whipping up a desire among the public for vengeance against criminals. A. E. Bottoms in his book, The Philosophy and Politics of Punishment and Sentencing", deals with crimes which usually dictates longer sentences and it is his assessment that, "the advent of automatic life sentences added nothing to the courts' ability to deal adequately with potential offenders" (Bottom 1995). Longer than commensurate sentences have been described as conflation of seriousness and dangerousness concepts (Nash 1992); a pseudo mandatory compromise (Walker 1996), which allowed politicians to circumvent the problems surrounding the actual selection of individuals predicted as dangerous by adopting an offender-based system. 6 The focus of dangerousness assessment and its classification thus became a measure of the extent which the public needed to be protected from such offenders. As Pratt (1995), suggests since the 1970's behaviour relevant to dangerousness has almost exclusively come to be defined in terms of repeat violence or sexual offending. The switch from dangerousness laws predicated on the positivist conception of cumulative sentencing (Henham, 1995), to notions of social defence was achieved within the rather incongruous framework of the Criminal Justice Act 1991, (Galligan, 1981; von Hirsch, 1986; Ashworth, 1989; Wasik and von Hirsch, 1990), The Act's just deserts rationale sat uneasily with consequentialist provisions such as S.80 (2) (b) (Formerly S.2 (2) (b) of the 1991 Act) (Nash, 1992), suggested that the section should rather be seen as an exception to the general agreement that provisions that allow predictive confinement by sentences for persistent violent and sexual offenders are inconsistent with principles of fairness. Works Cited Ashworth, A., (1984) "Criminal Justice and deserved Sentences", Criminal Law Review 340-55 Bottoms, A. E., (1995) "The Philosophy and Politics of Punishment and Sentencing", in C. Clarkson and R. Morgan (eds) The Politics if Sentencing Reform pp. 17-49, Oxford: Clarendon Press Galligan D. J., (1981) "Guidelines for Just Deserts": A Critique of Present Trends in Sentencing Reform" Criminal Law Review, 287-311 Lord Phillips of Worth Matrarers, (2006). Top UK Justice calls for shorter sentences, Sentencing Law and Policy, October 11, 2006 Nash, M., (1992) "Dangerousness Revisited", International Journal of Society of Law"" 20: 337-49 Pratt, J., (1995) Dangerousness, Risk and Technologies of Power", Australian and New Zealand Journal of Criminology 28; 3-31 Von Hirsch, A., (1986) "Past or Future Crimes, Manchester, Manchester University Press Wasik, M., and von Hirsch (1996) "Statutory Sentencing Principles", The 1990 White Paper, Modern Law Review; 53; 508-17 Read More