Punishment in the Community

Anne Worrall, Clare Hoy

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781134042142
• Edition: 2
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book aims to provide a critical analysis of both political and professional developments in policy and practice relating to non-custodial penalties, taking full account of recent developments and the creation of a National Probation Service in 2002. Its aim is to unravel the complex institutional goals (the role of community punishment in the criminal justice system), professional goals (what can be achieved by community punishment) and political goals (the packaging and 'sale' of community punishment to the law-abiding public). The central focus is on principles and politics of community punishment, and on the changing role of the probation service.

Part 1
The Principles and Politics of Punishment in the Community

Chapter 1

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Introducing community penalties

Introduction

In attempting to provide a framework for understanding punishments that do not involve prison, in their own right, there is a danger of imposing a false coherence and rationale on a set of experiences and events which have neither. But not to do so simply perpetuates the lack of interest and analysis which currently characterize the field. It is not without significance that Cohen's Visions of Social Control (1985), which warns of a dispersal of discipline from inside the prison out into the community, remains a more seductive text than Bottoms' more staid analysis of ‘Neglected features of contemporary penal systems’ (1983). The latter suggests that at least some of our most widely used punishments have very little to do with the creation of docile, compliant bodies and much more to do with penalising rule infringement, much as one might in a game of ice hockey (Bottoms 1983: 176). It will not do, he argues, to make sweeping generalizations about non-incarcerative sanctions, whether they be of the ‘soft option’ or the ‘punitive city’ variety. But neither will it do, in reacting against such generalization, to succumb to a nihilistic parody of postmodern analysis which claims that there are no identifiable themes, no patterns or consistencies – only gaps, illogicalities and fragmentations.

To make a start, then, it is possible to categorize community punishments in such a way as to enable an analysis of some underlying assumptions about the relationship between the state and the individual.

From segregation to normalization: the birth of community punishment

Before the end of the nineteenth century, the only non-custodial sentences (apart from the death penalty) used regularly by the courts were fines and release on recognizances (such as binding over, whose origins lie in the Justice of the Peace Act 1361). Since there were no facilities for paying fines by instalments, however, many people were imprisoned for non-payment of fines (Garland 1985). Release on recognizance usually involved giving sureties to guarantee future behaviour (rather like the present-day conditional discharge) or being ‘vouched for’ by a respectable citizen. Such undertakings were often given by the Police Court Missionaries, founded in 1876 by the Church of England Temperance Society and seen as the forerunners of the modern probation officer. The primary issues in imposing punishment, however, were concerns for formal equality before the law, uniformity of treatment and proportionality in the severity of punishment (Garland 1985).

During the period 1895–1914, however, there was a transformation in the relationship between criminals and the state. An increasing confidence in both their material wealth and their scientific knowledge led the late Victorians and the Edwardians to believe that crime was a social disease for which a cure was possible through ‘specific practices of normalization, classification, categorization and discrimination between criminal types’ (Garland 1985: 32). The reasons for such a transformation lie deep in the changing nature of Victorian industrial society and, in particular, attitudes towards the poor, but the result was the development of a complete sphere of punishment which focused on social control through attention to the material, social and psychological welfare of criminals.

By the second decade of the twentieth century, there was a separate court to deal with juveniles (Children Act 1908), a separate training institution (Borstal) for juveniles (Prevention of Crime Act 1908), a professional service to supervise offenders in the community (Probation of Offenders Act 1907) and a means for paying fines by instalments (Criminal Justice Administration Act 1914). Special institutional provision was also made for inebriates (Inebriates Act 1898) and for mentally defective criminals (Mental Deficiency Act 1913).

Since that time, the most significant developments in community sentencing before the Criminal Justice Act 1991 were the introduction of conditional discharges, attendance centres (Criminal Justice Act 1948, which also abolished birching), police cautioning (Children and Young Person Act 1969) and community service (Criminal Justice Act 1972). Compensation orders became sentences in their own right in 1988.

It is possible, therefore, to identify themes around which to organize community punishment conceptually. Those themes are:

• self-regulatory penalties
• financial penalties
• supervisory penalties

Self-regulatory penalties

The thread that joins police cautions and court discharges is the assumption that identification as a wrong-doer is sufficient to prevent further misbehaviour. Denunciation (which is private in the case of cautions but public in the case of discharges) of an otherwise upright citizen who has breached their contract with the local community (and thus with society) is seen to be enough to shame and reintegrate them with that community (Braithwaite 1989). They admit their guilt – or are found guilty – and frequently apologize and promise never to do it again. Their word is accepted (though often on condition that they prove their sincerity by not reoffending within a fixed period of time).

Financial penalties

The relationship between money and punishment, though ill-defined, is long established (see, for example, the Book of Exodus in the Old Testament) and taken for granted. The fine remains the most popular sentence imposed by courts, although its proportionate use has declined (Johnson et al. 2001; Home Office 2004a; Mair 2004). It is regarded by many as the most flexible of sentences since courts can match its amount both to the seriousness of the offence and to the offender's ability to pay (though in practice these two principles are often in conflict). At the same time, it is an impersonal sanction, implying no personal stigma. It is the only punishment whose obligations can be met by someone other than the offender themselves. It does not matter who pays the fine, as long as it is paid. So, while financial punishment may be effective in preventing further offending because ‘it hits them where it hurts – in the pocket’, it is not always seen as holding the offender sufficiently accountable for their breach of contract with the community. For this reason, it lacks the moral censure and personalized infliction of pain perceived to be essential in the punishment of serious crime (Young 1989).

This concern may be met to some extent through the payment of compensation, which may be linked to other sentences or (since 1988) imposed as a sentence in its own right. Compensation requires the offender to confront the harm done to their victim in a more direct way than a fine does, but the problem of devising a formula for the relationship between money and harm done (except in the most straightforward cases of theft or damage) is even more acute.

Supervisory penalties

The assumption underlying all punishments which involve an element of supervision is that the offender lacks the motivation or personal resources to repair their breach of contract with the community unaided. The exact nature of that aid is highly contested and its examination forms the central concern of this book. At this stage, therefore, it is perhaps sufficient to identify the main supervisory punishments as:

• the community rehabilitation order (which may include additional conditions relating to medical treatment, accommodation, programmes or activities and is available for anyone over 16 years of age)
• the supervision order (a similar order available for anyone under 18 years of age)
• the curfew order (restricting physical liberty with or without the addition of electronic monitoring or ‘tagging’)
• the attendance centre order (requiring fortnightly attendance for sessions of two or three hours, involving physical and educational activity run by the police and used for young people)
• the community punishment order (undertaking unpaid work for up to 240 hours and available for anyone over 16 years of age)
• the community punishment and rehabilitation order (which combines elements of community rehabilitation and community punishment)
• the drug treatment and testing order (which requires offenders to undergo regular testing and attend court reviews of their dependency)
• referral orders, reparation orders and action plans for young offenders aged 10 to 17 years

Other sentences

There are other punishments which do not fall neatly into any of these categories. Binding over, for example, is self-regulatory in that it accepts a verbal undertaking from the offender, but it requires a financial forfeit if that undertaking is broken. A deferred sentence (introduced under the Powers of the Criminal Courts Act 1973) offers a period of self-regulation to the offender – time to ‘put their house in order’ – but requires a return to court after that time with no guarantee of the nature of the eventual punishment. The suspended prison sentence might be regarded by some as self-regulatory insofar as no immediate pain, other than shaming, is inflicted on the offender. Nevertheless, the threat of imprisonment in the future is made more explicitly than in any other punishment, and the offender is left in no doubt that they have narrowly escaped incarceration, thus rendering the notion of self-regulation rather secondary to that of involuntary self-restriction. The use of the suspended prison sentence has declined and now represents only 1 per cent of all sentences (Newburn 2003), although they continue to be used to enforce payment of fines.

A hospital order relates specifically to offenders diagnosed as being mentally disordered and may be regarded, in theory, as being ‘somewhere between’ supervision and prison. In practice, however, many of these ‘patients’ experience imprisonment at some stage of the criminal justice process, either pre-trial or following sentence. The numbers of those who do not and are sentenced to ‘unrestricted’ hospital orders have reduced from about 750 a year in 1984 to 614 in 2001. Numbers receiving ‘restricted’ hospital orders (which frequently, though not necessarily, involve prison, secure units or special hospitals) have increased in recent years with annual admissions quadrupling from 284 in 1984 to 1074 in 1997, and reducing again to 980 by 2001 (Home Office 2002a).

Principles of sentencing and community punishment

Having identified the range of community disposals available to the courts, the next stage is to see the extent to which they can be said to satisfy the requirements of conventional ‘philosophies of punishment’ and ‘principles of sentencing’.

It is usually argued that there are two broad philosophies of punishment known as retributivism and utilitarianism. Put very simply, retributivism (which can be traced back to ancient legal systems) maintains that punishing wrong-doing is a moral right and duty, an end in itself and an essential component of a civilized society. The obligations on the punisher are to ensure, first, that the person to be punished is correctly identified (that is, that guilt is established) and, second, that the punishment is proportionate to the seriousness of the crime (that is, that it is not excessive). Utilitarianism (whose most eloquent exponent was the philosopher Jeremy Bentham, 1748–1832) maintains that punishment is itself an evil which can only be justified if it brings about a greater good, namely the reduction of crime. Punishment is a means to an end, not an end in itself. The most obvious distinction between the two philosophies is that utilitarians have to demonstrate that punishment (or sentences) work, while retributivists only have to demonstrate that punishment is deserved.

There has been a tendency to associate retributivism with measures that are predominantly punitive, such as imprisonment and corporal punishment, and to associate utilitarianism with rehabilitative measures, but this oversimplifies the relationships. From these two broad philosophical approaches, a number of principles have developed which often result in contradictory and inconsistent sentencing. The implications for community punishment of the received wisdom of sentencing ‘principles’ require some examination.

Just deserts implies that the main purpose of sentencing is to denounce the crime and ‘visit retribution’ on the criminal, to the extent that they deserve it. Retribution must be distinguished from revenge, which is disproportionate punishment and supposedly has no place in any modern philosophy of justice, though observers of the tabloid press, and particularly of the mistakes made during the search for the killer of Sarah Payne in summer 2000, may wonder otherwise. In this case, the News of the World ‘named and shamed’ a convicted paedophile. Residents of a housing estate in Portsmouth sought him out and mob violence ensued. Other suspects were targeted, including a paediatrician in Gwent. The paper was prevented from printing further names. The crucial considerations for a just deserts approach are the seriousness of the crime and the culpability of the criminal (that is, the extent to which they can be held responsible for their actions). There is scope to consider aggravating and mitigating factors insofar as they relate to the offence and the offender's part in it, but wider considerations of the offender's circumstances are deemed to be less relevant. The government White Paper Crime, Justice and Protecting the Public (Home Office 1990a) sets out the philosophy underpinning the Criminal Justice Act 1991 and states that its aim:

is to ensure that convicted criminals … are punished justly and suitably according to the seriousness of their offences; in other words that they should get their just deserts.

(para. 2.1)

It goes on to explain that this means that, while serious offenders should still go to prison, many others can be dealt with safely (and more cheaply) in the community. ‘Seriousness’ is still the basis of sentencing decisions despite the repeal of several sections of the 1991 Act. The Criminal Justice Act 2003 states that in order to determine the seriousness of an offence, sentencers should take into account the culpability of the offender and the harm caused, the offender's previous convictions and whether the current offence was committed whilst on bail.

Deterrence was the original concern underlying utilitarianism. It implies that the main purpose of sentencing is to deter people from committing crime. There are two elements in this principle: individual and general deterrence. Individual deterrence refers to measures which are intended to impress on the offender that the personal consequences of their actions in the form of the punishment received make it ‘not worth’ committing crime again. The most commonly used individually deterrent sentence is the fine, but any sentence that restricts offenders' liberty, inconveniences or shames them may have a deterrent effect. General deterrence refers to measures that are intended to set an example for other people in the hope of deterring them from committing crime. For example, a bout of criminal damage in a particular locality may result in an ‘exemplary’ prison sentence to demonstrate that local people have ‘had enough’. One objection to deterrent sentences is that they may be disproportionate to the seriousness of the offence, in order to ‘make a point’. A more fundamental criticism is the underlying assumption that crime is committed as a rational choice, with the offender weighing up the possible consequences of their actions before deciding to offend. Although this may be true in some instances, it is by no means the only explanation for offending. Much crime is impulsive or stems from what many people would view as irrational thoughts or feelings.

Protection and incapacitation are aims intended to protect the public from further harm from the offender. Rather than relying on the rational judgement of the offender that ‘crime does not pay’, a safer way of ensuring that no further crime is committed is to reduce the opportunity for crime by restricting the offender's liberty. The ultimate example of such a sentence is the death penalty. Imprisonment is less effective, since prisoners may escape and they will, in any case, be released at some point. Giving someone a community punishment order, placing them on a probation programme or even subjecting them to electronic monitoring may seem mild measures in comparison but the principles of restriction and surveillance are basically the same. The extent of the restriction has to be decided according to the seriousness of the offence and this means that the retributive principle of proportionality also has to play a part.

Compensation and reparation Just as deterrence may be either individual or general, so the principle of ‘making good’ harm done can include both the individual victim and wider society. Compensation (predominantly financial) is usually made to the individual victim of a crime. Reparation is a broader concept which involves the offender in doing something socially useful and morally exculpatory (such as community punishment), thereby demonstrating their ...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• List of Abbreviations
• Acknowledgements
• Preface to the Second Edition
• Introduction
• Part One The Principles and Politics of Punishment in the Community
• Part Two The Changing Role of the Probation Service
• Recommended further reading
• References
• Index