The atmosphere in the Parole Authority hearing room was heavy, the screen on which the prisoner appeared was fuzzy and crackling, the prisoner’s halting speech intensified by the poor reception. The judge, having listened to the prisoner’s legal representative list the litany of prisons he had occupied over the past eight years, the lack of opportunities to participate in rehabilitation programmes and the fracturing of already tenuous family relationships by the constant movements, frowned. Suddenly he exclaimed, “Goodness, what have they done to my sentence?!” The prisoner peered through the screen, recognising the judge who had sentenced him eight years before. In the sentencing remarks the judge had made a comprehensive list of recommendations as to how this young man was to be assisted to appreciate the wrong he had done, and left a long period on parole for him to be integrated into the community. The judge could see how little had been implemented and the Authority had no choice but to refuse parole. Even if the prisoner was able to complete the rehabilitation which was recommended and was successful in gaining release, he would have no time left for a period of parole to reintegrate him into the community.
The shock on the face of the judge on realising that “his” sentence, carefully crafted and thought out, bore no resemblance to the sentence which had been experienced by the prisoner reflects the everyday experience of imprisonment. It is as if the prisoner disappears from the bright lights of the sentencing court into the black hole of imprisonment, only to surface at the point of parole consideration. The minutiae of the sentence, the daily actions and interactions which make up the sentence as a lived experience are not viewed as relevant to a consideration of sentencing, whether as a legal construct or as a way of assessing compliance by the prisoner. This book invites a broader conception of sentencing as an ongoing process requiring certain actions and reactions on the part of the sentenced person, the criminal justice system and the broader community.
The lay observer would assume that there is a close relationship between the judicial act of sentencing and the resulting subsequent processes of punishment. In reality, discussion of the aims of sentencing often occurs at a highly philosophical level and as a way of justifying the sentence to appellate courts with little attention paid to how these aims are carried out in practice. Despite this disconnection sentencing is clearly invested with a real structural and physical content.
The concept of the “lived sentence” arises primarily from the somewhat trite and obvious observation that “the sentence” as conceptualised by legal practitioners and academics and correctional staff, as opposed to “the sentence” experienced by the sentenced person manifests real and concrete differences. Lack of attention to this difference leads to a real and significant “lacuna” (McNeill et al. 2009) in theories of sentencing and in penality more generally. The sentence as a real, visceral experience contains processes and procedures, as well as expectations and subjective reactions. From this perspective, failure to consider the perceptions and understandings of those living the sentence is not just a question of fairness but leads to a form of “imaginary penality” (Carlen 2008) by omitting a crucial view of the process from examination and theorising.
Is it so controversial to contend that sentencing has meaning? This assertion is different from the normative argument that sentencing should have meaning. Rather, the idea is that whether we like it or not or whether we acknowledge it or not, the sentence does transmit meaning. To the sentenced person this meaning engenders both prescriptions for action and expectations for fulfilment of obligations. These arise both from the imposition and living of the sentence. The actions and reactions of sentenced people, judicial officers, correctional workers and others constitute the sentence in action.
A consequence of the acknowledgement that
is that attention must be paid to the experiences of the sentenced. This “governmentality gap”, that is,the discrepancy between the general assumptions about a disposition (held by criminal justice professionals) and the day to day reality of such decisions among criminal justice workers, makes examining the local culture of punishment important (Grey and Salole 2006, p. 661).
can only be illuminated by a close examination of not only the practices of criminal justice but also the experience of the subjects of criminal justice dispositions.the lacuna in the existing penological scholarship which concerns the contingent relationships between changing governmental rationales and technologies, on the one hand and the construction of penality in practice on the other (McNeill et al. 2009, p. 419).
This book seeks to link the sentence and the result of that sentence: in particular in how it relates to risk and opportunities for rehabilitation. The main argument is that the aims of sentencing provide not only a philosophical guide to judicial officers but also an overarching rationale for the processes and practices which constitute the lived sentence. A primary contention is that the aims of sentencing contain significant subjective elements. In order to fulfil the aims of the sentence and satisfy the release authority, the sentenced person must demonstrate certain subjective states connected with and implicit in the aims of sentencing. The “subjective” requirements of sentencing, those often unsaid and non-explicit expectations that the prisoner demonstrate appropriately that he feel not only punished, denounced and separated from the community, but also feel rehabilitated, accountable to the community and attentive to the needs of victims, are the crux of what we expect the sentence to be about.
The use of the word “subjective” requires clarification. This concept is used here to describe the internal thoughts and consciousness of the individual being sentenced, not the narrower meaning of “subjective factors” used in sentencing. In addition, a distinction must be made between the “subjectivist” arguments about punishment (e.g., Kolber 2009; and for a rebuttal of this perspective, Gray 2010) and the theoretical position proposed here. The term is used in this work to illustrate the fact that, for example, the condition of being remanded in custody is little different for the prisoner to being sentenced, despite the legal difference in their status arising from the presumption of innocence. In other words, the lived experience of the subject must be taken into account in the analysis. This is different from asserting that because of individual differences, punishments should be calibrated accordingly. Feeley (1979) has already noted the “seamlessness” of process and substantive law in criminal justice; this perspective is explored as it applies to the relationship between in-court sentencing and the experience of the sentence of imprisonment by the prisoner.
Much attention has recently been paid to public perceptions of sentencing, as it is felt that a lack of confidence in the process can diminish important aims of sentencing such as deterrence. The “community” clearly does not include the sentenced person whose views are rarely sought. Asking prisoners about their experience of sentencing and imprisonment is important from a practical point of view to assess efficacy; further, it is a matter of fairness that if sentencing is a communicative process, the communication is fully understood by all involved parties, particularly those who are subject to scrutiny and assessment as to their compliance with the strictures contained therein.
Imprisonment is the focus of this book, as it provides an opportunity to view the practical manifestation of sentencing in its most restrictive, powerful incarnation.1 The question of the legitimacy of our instruments of punishment is inextricably related to the way the aims of sentencing are linked with the resulting structural and physical aspects (Sparks and Bottoms 1996). Perhaps more central to the main argument, the importance of subjectivity in sentencing, the “meaningfulness of punishment” (Weaver and Armstrong 2011) requires the offender to be “accepting of the punishment in order to be able to respond and be receptive to the reproach communicated through the act of punishment” (Weaver and Armstrong 2011, p. 29). Concomitantly, the responsibility arguably cuts both ways, with the expectation of the provision of the means to fulfil these obligations. If prisoners are to be held to account, then it is incumbent on the sentencing and imprisoning body to first communicate clearly what these obligations are and, second, to provide the conditions under which this can be done.
The criminal justice system in NSW consists of a number of related but independent agencies. When it comes to sentencing, the courts operate as the lead agency. Clearly they do not have available to them “choices about the general purposes of punishment” (Duff and Garland, 1994, p. 16), having to choose from a limited menu of sanctions constrained by bureaucratic and political choices as enshrined in legislation and case law. Nevertheless the judicial officer, on the basis of an abundance of information about the offence and the offender (often not available to others concerned with implementing the sentence), hands down a sentence which, if one of imprisonment, comprises not only a term of years but also often includes recommendations as to treatment, rehabilitation and reparation to the victim as well as fulfilment of the other aims of sentencing.
Philosophy must be translated into action in sentencing and it is in the operationalisation of these aims that the true nature of the sentence is revealed. The relationship between the act of sentencing and the implementation of the sentence would appear straightforward and the aims of each agency should thus be in accordance with each other. Each step, however, has its own internal managerial “habitus” (Bourdieu 1980, p. 52) with adherence to internal priorities and exigencies unrelated to the other and, perhaps uniquely for public sector bodies with overlapping roles, very little communication between them. The Department of Corrective Services NSW (henceforth CSNSW) views itself as a “downstream” agency with little control over the flow of people through its doors (Sotiri 2003, p. 173) and generally as the passive recipient of the waves of prisoners sent there each year. If an agency can be evaluated by the way it assesses itself, it would appear that the goals of CSNSW are more about security and safety, tangible and measurable goals, and not so much about implementing the philosophical aims of sentencing. The courts may similarly view themselves as having little agency in dealing with matters investigated by the police and prosecuted by the Department of Public Prosecutions (DPP) (and police in the Local Courts). They have also maintained a “hands off” policy when it comes to the serving of the sentence, holding that their role does not include interfering with the job of the executive (Edney 2002).
1.1 Core Hypotheses
The aim of this book is to document and theorise about the way that sentencing is operationalised. By relating what prisoners say about their experience of sentencing and imprisonment to official policy around the aims of sentencing and other related themes such as risk and rehabilitation, the result is an account of the way in which a group of prisoners reflect on their experiences of sentencing and imprisonment.
The central ideas arise from the contention that the sentence should be viewed in its totality, not just as a legal artefact but as a lived experience continuing throughout incarceration, conditional liberty and sometimes beyond. Another important premise is that the sentence contains certain conditions and expectations of the sentenced person. If sentencing is meant to be a communicative enterprise, the underpinnings of that communication are contained in the aims of sentencing. Further the communicative aspects of the sentence continue past the courtroom into the requirement that the sentenced person respond to the strictures of the sentence. A fundamental albeit unarticulated condition or expectation of sentencing is the requirement that the sentenced person undergo some kind of personal, transformative experience in response to the sentence. In the light of these expectations of personal transformation an understanding of the environment of the prison from the prisoners’ point of view is important in identifying the barriers to redemption, restoration or rehabilitation.
Little attention is generally paid to the perceptions and understandings of the subjects of criminal justice processing. While it is important to identify the philosophy and practice of correctional authorities, it is in the voices of those who are the subjects of these processes that a fuller understanding of the barriers to the fulfilment of the aims of sentencing is to be found. In seeking to identify the elements of subjectivity contained in sentencing law, the experiences of prisoners of sentencing and imprisonment were sought. Semi-structured interviews were conducted with 30 prisoners serving medium to long sentences, in seven prisons which were mostly maximum security with one medium security wing.2 In an open-ended but basically chronological interview process, prisoners were encouraged to speak about the sentencing process and their subsequent experience of the processes of imprisonment. Methodological perspectives which emphasise subjectivity were useful in preparing for interviews and analysing data.
One of the major aims is to emphasise the continuous and related nature of the sentencing process and the serving of the sentence. The difficult task of bringing together the “habitus” of law with that of corrections was therefore attempted. Beginning with a socio-political analysis of criminal justice in NSW (Chap. 2), legal analysis of sentencing law (Chap. 3), a degree of policy analysis (Chap. 5) and theoretical and policy analysis of the influential paradigms of risk and rehabilitation throughout, the book utilises a mixed method approach, placing interview data in context, together with an examination of sentencing law and correctional policy in NSW.
Care was taken in the data collection phase of the project to allow prisoners to express those matters which they perceived as important to them, and although a broad question guide was used the open-ended nature of the process allowed them to focus on what was important to them. Although there was a high level of consistency among their comments in many areas, some emphasised the “in-court” phase of their sentence, some were more interested in talking about the way the sentence was operationalised.
Only male prisoners were interviewed as the aim was to provide a picture of mainstream imprisonment in NSW, women constituting only a small minority of prisoners. Women suffer particular and specific disadvantage in the NSW prison system and it was felt that the scope of the project would not allow a proper analysis of their position.3 There was also no attempt to check what prisoners said against the official record as the aim was to foreground their concerns. Their responses have been placed in the context of an examination of the aims of sentencing and the sentencing process in the light of the subjective elements therein: the local context of criminal justice in NSW, the managerial and individualistic focus of CSNSW and the conceptualisations of risk and rehabilitation which substantially inform the way the sentence is operationalised.
As a highly contextualised practice, the meaning of sentencing and imprisonment is temporally determined and is a product of the time and place in which they occur. As the culmination of a process of assessment of information about the offence and the offender, sentencing is the most visible and controversial aspect of modern criminal justice. Thus, an essential part of the analysis is consideration of the socio-political context of sentencing and imprisonment as practised specifically within NSW.
Rather than a legally constrained event, the sentence is also a collection of socially mediated and constructed practices carried out by various criminal justice functionaries as well as by the prisoner himself. These practices have an empirical character in that they can be seen, experienced and assessed. In relating the sentence as handed down by the court to the sentence as ex...