Custodial Sentencing

12 Key excerpts on "Custodial Sentencing"

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  Sentencing and Criminal Justice

  • Andrew Ashworth(Author)
  • 2015(Publication Date)
  • Cambridge University Press

    (Publisher)

  9 Custodial Sentencing Contents 9.1 The state of the prisons page 295 9.2 The use of imprisonment 299 9.3 Principles for the use of custodial sentences 303 9.4 On the cusp of custody: short custodial sentences and suspended sentences 310 9.5 Medium-to-long custodial sentences: release on licence 323 9.6 Long custodial sentences 325 9.7 Demographic features of the prison population 328 9.8 Conclusions 333 This chapter presents a critical appraisal of the law and practice on custodial sentences. Imprisonment involves deprivation of liberty and is the most onerous and intrusive sentence available in this and other European countries, engaging several rights declared in the European Convention. Deprivation of liberty and incarceration in a punitive institution therefore require special justification. To begin that process, it is necessary to understand the practical meaning of custodial sentences. This depends on the various provisions for calculating the proportion of the nominal sentence that the offender will spend in custody, on the conditions in which prisoners are held, and on the terms on which they are later released. While the sentence handed down in court establishes the framework, there are exercises of discretion in the prisons and by the Parole Board that have powerful effects in determining the time actually served. 1 The chapter begins with an outline of the state of English prisons. It then considers principles and policies for the use of custodial sentences, and moves on to an analysis of the statutory tests for imposing custody, and also the prevailing approach to long custodial sentences. The chapter concludes with a brief discus- sion of various groups of prisoners who raise particular issues of principle. 1 See Padfield, Morgan and Maguire (2012), pp. 967–981.

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  AQA Psychology A Level Paper Three: Forensic Psychology

  • Phil Gorman(Author)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  This question is looking for both skills of knowledge and understanding, and analysis and evaluation. As there are 6 marks for AO1 and 10 for AO3, there should be greater emphasis on the evaluation. However, all such extended writing questions are marked holistically and therefore it is important that the knowledge is accurate and detailed and that the evaluation is clear and effective.

  Possible answer: Across the world, the most common way of dealing with offenders is to make them spend some time in prison. Custodial Sentencing is just that, the process whereby, having been found guilty of a crime, someone is removed from the rest of society by being placed in an institution (prison or young offenders’ institution).

  There are four main aims associated with the use of Custodial Sentencing; one is retribution, which involves making offenders pay for their crime by being punished harshly and prison is often the harshest punishment some societies have. Another is incapacitation, which involves removing the offender from society so that they can’t commit any more crimes and they are no longer a danger to anyone. The third is deterrence and this means using prison as a way of putting offenders off any further crime and making an example of them so that others will see that it’s not a good idea to commit crime. The final aim is for the purpose of reformation or rehabilitation and this suggests that prison should be a time when offenders can learn new skills and become better people so that when they go back to society, they won’t offend again.

  The use of behaviour modification in custody is based on the idea that learned behaviour can be unlearned and therefore offending behaviour can be conditioned while the offender is in prison. According to the Law of Effect, any behaviour that is followed by pleasant consequences is likely to be repeated and therefore the best way to change behaviour is to try to associate the desired behaviour with something pleasant, which is the basic idea behind behaviour modification. Good behaviour on the part of the prisoners will be repeated if it is followed by some kind of reward or privilege.

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  Sentencing and Criminal Justice

  • Andrew Ashworth, Rory Kelly(Authors)
  • 2021(Publication Date)
  • Hart Publishing

    (Publisher)

  7 Custodial Sentencing

  7.1. The State of the Prisons

  7.2. The Use of Imprisonment

  7.3. Principles for the Use of Custodial Sentences

  7.4. On the Cusp of Custody

  7.5. Medium-to-Long Custodial Sentences: Release on Licence

  7.6. Long Custodial Sentences

  7.7. Conclusions

  This chapter presents a critical appraisal of the law and practice on custodial sentences. Imprisonment involves deprivation of liberty and is the most onerous and intrusive sentence available in this and other European countries. Incarceration in a punitive institution requires special justification. Incarceration in the particular conditions prevailing in the prisons of England and Wales calls for strong justifications, especially in relation to the rights declared in the European Convention on Human Rights. In order to determine what needs justification, it is necessary to understand the practical meaning of custodial sentences. This depends on the various provisions for calculating the proportion of the nominal sentence that the offender will spend in custody, on the conditions in which prisoners are held, and on the terms on which they are later released. While the sentence handed down in court establishes the framework, there are exercises of discretion in the prisons and by the Parole Board that have powerful effects in determining the time actually served.1

  The chapter begins with an outline of the state of English prisons, a key factor in what must be justified. It then considers principles and policies for the use of custodial sentences, and moves on to an analysis of the statutory tests for imposing custody, and also the prevailing approach to long custodial sentences.

  7.1. The State of the Prisons

  ‘We saw once more in 2018–19 … that far too many of our jails have been plagued by drugs, violence, appalling living conditions and a lack of access to rehabilitative activity’. This was the assessment of the Chief Inspector of Prisons in his 2019 report, and little had changed by the time of his 2020 report.2 Similar observations were made by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment, reporting on its 2019 visit to English prisons to follow up on its 2016 report, which had identified ‘prison violence spiraling out of control, poor regimes and chronic overcrowding’.3

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  Doing Justice Better

  The Politics of Restorative Justice

  • Cornwell, David J.(Authors)
  • 2007(Publication Date)
  • Waterside Press

    (Publisher)

  For as long as prisons remain primarily agencies of retribution, the likelihood of them assuming other than a retrospective (or backward-looking) operational culture is minimal. This is not, however, a change of direction that prisons alone can undertake. In order for it to come about, the emphasis within criminal justice generally has to be altered away from preoccupation with crime primarily as a violation of the law and the state and towards an understanding of crime as a violation of persons and communities (Zehr, 2002a). Viewed in the latter manner, the central purpose of custodial corrections becomes that of making amends for the harm done by crime and of those imprisoned not merely being made to ‘serve time’ in satisfaction of some form of tariff that equates guilt and culpability solely with periodic measures. ‘Doing time’ as the almost universal description within the argot of prisons implies, conceptualises custodial sentences as the quid pro quo for offences. In present circumstances and particularly in Britain, it amounts to a negative sanction because it makes no further and necessary demands on offenders other than to survive the period spent in detention. In this sense it also makes the punishment preponderantly retributive, simply by depriving it of any other identifiable purpose. What is perhaps even worse, however, is the fact that during at least the past two decades, the underlying political agenda driving the custodial punishment of offenders has been primarily that of social incapacitation and exclusion. That relatively scant pretence has been made in Making Prisons Reparative and Restorative 119 relation to facilitated change or the inculcation of victim awareness is little short of reprehensible, driven as it is by the perceived need of successive governments to be seen to be ‘tough on crime’ 11 (see, for example, Cavadino and Dignan, 1997a: 12; Roberts and Smith, 2003: 206-7).

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  Personal Construct Perspectives on Forensic Psychology

  • James Horley(Author)
  • 2004(Publication Date)
  • Routledge

    (Publisher)

  Chapter 7 Psychological treatment of offenders in institutions

  James Horley and Lody Bennett

  Individuals who are charged and convicted of crimes generally enter the criminal justice system with a disposition involving probation. Contrary to common assumptions, the majority of adjudicated criminal offenders do not receive a custodial prison sentence. In addition, only a very small minority of individuals charged with a criminal offence are detained for any length of time in forensic psychiatric facilities after being found not criminally responsible for their actions, which, of course, means that they are not criminal offenders although they may well be dangerous individuals who require institutional confinement and treatment.

  Incarceration of offenders can serve to control reoffending or recidivism temporarily through incapacitation. Supervision, too, can limit recidivism. Incarceration and supervision are intended as deterrence by punishment. Previous examination of the psychological literature regarding criminal conduct indicates that punishment without rehabilitation does not reduce reoffence rates (Andrews, Zinger, Hoge, Bonta, Gendreau & Cullen, 1990). In the United States, approximately two-thirds of offenders released from state prisons are rearrested within three years (Henning & Frueh, 1996), and only a small percentage have been provided with any form of therapy. Psychological change through some form of treatment appears necessary to reduce criminal reoffence. Appropriate psychological treatment of offenders in institutions has the potential to assist offenders and to reduce the number of victims of crime. This chapter will examine the use of psychological treatment within forensic institutions. Types of treatment, treatment efficacy, and special issues regarding treatment of offenders will be considered.

  Types and efficacy of treatment

  The history of psychological treatment of offenders in institutions is relatively brief. Prison-based psychological services in the United States appear to date from the early to mid-twentieth century, in Canada from the mid-twentieth century, and other countries in the West from similar times (Bartol & Bartol, 1999). Institutionalized treatment, almost needless to say, is influenced by the dominant political policies and beliefs of the time. The concept of offender rehabilitation was accepted in the 1960s but was questioned during the 1970s, especially in the United States (see Martinson, 1974), resulting in a return to harsher sentencing and punishment. Currently, there is more of an interest in determining what type of rehabilitation is effective rather than assuming that meaningful rehabilitation is impossible. The thrust of government initiative, however, tends to concentrate on law enforcement through institutional means rather than more constructive and preventative measures (Petersilia, 1995), and this has translated into larger numbers of incarcerated offenders in countries like the United States (Milan, Chin & Nguyen, 1999). The rehabilitation of offenders can be undermined by sentencing reforms (Andrews et al., 1990), although clearly certain individuals require lengthy confinement due to valid public safety concerns.

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  Offender Rehabilitation

  Theory, Research and Practice

  • Gwen Robinson, Iain D Crow(Authors)
  • 2009(Publication Date)
  • SAGE Publications Ltd

    (Publisher)

  THREE

  Delivering Rehabilitation: Custodial and Community Contexts

   

   

  Introduction

  In this chapter we consider the extent to which prison and community sentences play a role in rehabilitation. We also look at the work of independent agencies, commonly referred to as the Community and Voluntary Sector (CVS). The work of therapeutic communities is also considered, using a prison-based example (Grendon Underwood) and a community-based example (the Phoenix House programme for drug addicts).

  This may look like a wide range of topics for a single chapter, but the underlying theme is the settings in which rehabilitation occurs, and this inevitably raises the question of just how important is the setting in which rehabilitation takes place to its success. At first glance it may also appear that there is a spectrum here, ranging from incarceration at one extreme, where rehabilitation seems to be at its most problematic, to the therapeutic community at the other, where rehabilitation is the main focus. However, we would argue that each of the settings described can contribute to the process of rehabilitation.

  Rehabilitation in the Context of Prison

  The purpose of prison

  As mentioned in Chapter 2 , the prison system we are familiar with today has not always been in existence, and only came to be one of the main ways of dealing with offenders just over two hundred years ago. Historically the legal functions have been custodial, coercive and punitive (Morgan and Liebling, 2007: 1107–8). The custodial function is that of holding a person where necessary pending trial and sentence. A person may be held coercively in order to get them to comply with a court order, most often these days because they have defaulted on payment of a fine. But the most common function is punitive, as a result of conviction for an offence. Although prison tends to be thought of primarily as a punishment, sentences of imprisonment have been considered in modern times to have several purposes: retribution, deterrence, incapacitation, and rehabilitation. Alexander Paterson, a reforming Prison Commissioner, best known for having pronounced that ‘Men come to prison as a punishment, not for

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  Psychology and Crime

  2nd edition

  • Aidan Sammons, David Putwain(Authors)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  Not all research has supported the superiority of community sentences. Killias et al. (2010) compared 123 Swiss offenders randomly assigned to either community service or a short prison sentence (maximum 14 days). Over the following 11 years no significant differences were found in the recidivism rates of the two groups. Killias et al. suggest that imprisonment is less disruptive to employment and social relationships than is often assumed. This may be true for the extremely short prison sentences studied, but once a prison sentence exceeds a few weeks its detrimental effect may become more marked. It should also be noted that the small sample used by Killias et al. makes it hard to draw firm conclusions. By the same token, this study does have a significant strength in that the offenders were randomly assigned to the different punishments. This helps to rule out selection bias, whereby the offenders assigned to the community sentence were those with the lowest risk of recidivism. The danger of selection bias is highlighted by a large-scale review of studies comparing custodial and non-custodial sentences by Villettaz et al. (2015). They found, overall, that non-custodial sentences were associated with lower recidivism. However, the difference was more marked in the quasi-experimental studies than the true experiments. When offenders were randomly assigned to different punishments, the differences between prison and non-custodial sentences were not significant. Villetaz et al. identify a number of other limitations with the research evidence in this area: the follow-up periods are too short (usually two years); measures of recidivism are relatively poor (over-reliance on official statistics and under-use of offender self-reports); and the effects of different types of sentence on areas such as health, employment, and social and family relationships are rarely investigated. Overall, then, it is possible that the superiority of community sentences over imprisonment has been exaggerated by the methods chosen to investigate it. That said, even if community sentences are only as effective as imprisonment, the cost-effectiveness aspect of the community option is difficult to argue with.

  Restorative justice

  Restorative justice is a set of ideas and practices that represent an alternative to the ‘punitive’ model of justice that predominates in the Western world. In the punitive model, justice is served by taking retribution on the offender. In the restorative model, justice is served by healing the harm (to victims and the wider society) that the offence caused (Bazemore, 2009). Restorative justice takes many different forms, but the key elements are (1) that offenders, victims and other stakeholders in the offence voluntarily agree to participate; (2) that the offender must take responsibility for the harm he caused and be willing to discuss it honestly with victims and the community; and (3) that offender, victims and others meet face to face to agree on an appropriate way of repairing the harm (Llewellyn & Howse, 1998). The outcome of a restorative justice approach is typically that the offender is required to make amends for his offence. This could include apologising to the victim(s), unpaid work for the community or the victim, or entering into an agreement about future behaviour (Bazemore, 2009). Restorative justice is not necessarily an alternative to other judicial sanctions and could be employed at many points in the criminal justice system. It can be used instead of charging individuals and trying them in court but equally might be used with a convicted offender as part of a community sentence or as a condition of parole after a prison sentence (Latimer et al., 2005).

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  Psychology and Crime

  2nd edition

  • Aidan Sammons, David Putwain(Authors)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  They estimated that, compared with ‘standard’ prison (i.e. the offender is simply confined for the duration of her sentence), both prison with added elements (such as educational input, drug treatment and sex offender treatment) and community-based sentences (such as intense surveillance in the community) were significantly more effective at reducing recidivism. They found that alternatives to ‘standard’ imprisonment saved significant amounts of public money, between £19,000 and £88,000 per offender. Non-Custodial Sentencing Besides imprisonment, legal systems have a variety of other means of punishing and reforming offenders. In the UK and the US, the commonest forms of non-custodial sentence are fines, probation and community punishment, which are discussed below. In addition to these, courts in England and Wales may impose other sen-tences (Ashworth, 2010): ■ Absolute discharge. The offender is released with no conditions attached. This is only very rarely applied, typically for the most minor of offences. ■ Conditional discharge or ‘bind over’. The offender is released on the condition that, should they commit another offence within a specified time period (up to three years), they will be sentenced for both that offence and the original one. It is used as a threat to maintain good behaviour. chapter 9 Judicial responses to offending 123 ■ Compensation order. The offender is required to pay a specified sum of money to her victim(s) to recompense for her offence. This is different from a fine, which is paid to the authorities. Fines A fine is a sum of money paid to the authorities by an offender as restitution for her offence. The amount is set by the trial judge but must be within limits laid down by law. Caldwell (1965) suggests that fines have a number of advantages over other forms of punishment.

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  American Corrections in Brief

  • Todd Clear, Michael Reisig, Carolyn Petrosino, George Cole(Authors)
  • 2016(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 40 PART 1 The Correctional Context Offenders will return to society once they are “cured.” Therefore, people who commit less serious offenses may spend considerable time in prison if experts believe they need a longer period of time to be rehabilitated. By contrast, a person who committed mur-der may be granted early release by showing signs that the psychological or emotional problems that led to the crime have been corrected. In theory, judges who view rehabilitation as the primary goal should not set a fixed sentence. Rather, they should sentence offenders to a minimum and maximum period of time so that parole boards may release inmates when offenders have been rehabilitated. Such sentences are called indeterminate sentences. This sentencing strategy is justified by the belief that prisoners will not participate in treatment programs that can aid in their rehabilitation if they know when they are going to be released back into the com-munity. Rather, prisoners will be more likely to cooperate with counselors, psycholo-gists, and other professionals who can help them with their rehabilitation when their release from prison depends on them doing so. From the 1940s through the 1970s, rehabilitation was widely believed to be an important correctional goal. During the past four decades, however, influential studies of rehabilitation programs have challenged the idea that we can cure criminal offenders.

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  The Penal Crisis and the Clapham Omnibus

  Questions and Answers in Restorative Justice

  • Cornwell, David J.(Authors)
  • 2009(Publication Date)
  • Waterside Press

    (Publisher)

  14 In such a manner, the period spent in custody has a specific purpose for each offender, and is perceived from the day of admission to be part of the process of eventual release 12. Here see John Blad’s explanation of ‘instrumental’ punishment as a means of pursuing social policy objec-tives in his contribution: ‘The Seductiveness of Punishment and the Case for Restorative Justice’ in D. J. Cornwell (2006), op. cit ., at pp. 137-8. 13. See P. Carlen (1994), ‘Crime, Inequality and Sentencing’, in A. Duff and D. Garland (eds.), A Reader on Punishment , Oxford: Oxford University Press, at p.310. 14. I have set out proposals for the design and operation of reparative prison regimes at some length in earlier work, and thus do not repeat these here. The important feature of such regimes is, however, that they provide a clear link between prisons and communities, and that as part of the custodial period offenders spend a transitional period working in the community on trial to test their commitment to regular work, law-abiding behaviour, and compliance with the conditions of their temporary release from custody. 122 The Penal Crisis and the Clapham Omnibus into the community within which the offender has to become re-integrated. There is thus an incentive for all participants in such regimes to use the experience in a posi-tive and purposeful manner that will assist them to stay ‘crime-free’ on release. In the course of preparing this book I have become aware of, and have been considerably impressed by the work recently undertaken in relation to serious sexual offending and its therapeutic treatment by Ward and Stewart (2003) and Ward et. al . (2007) in Australia and New Zealand within their Good Lives Model (GLM) and its extended formulation.

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  Introduction to Corrections

  • David H. McElreath, Linda Keena, Greg Etter, Ellis Stuart Jr.(Authors)
  • 2011(Publication Date)
  • Routledge

    (Publisher)

  39 3 Sentencing Crime is an intentional violation of duties imposed by law, which inflicts an injury upon others. Criminals are persons convicted of crime by competent courts. Punishment is suffering inflicted on the criminal for the wrong done by him, with a special view to secure his reformation. —Declaration of Principles Adopted and Promulgated by the 1870 Congress of the National Prison Association Introduction Imagine you are a district judge. A 19-year-old stands before you charged with operating a motor vehicle while intoxicated and damag-ing property. He was arrested after he sideswiped another car on the interstate. He pleaded guilty and is awaiting your sentence. This is his third conviction for an alcohol-related offense. What will be the sentence? Is it important that you make an example of him so that others will not engage in similar activities? Do you think the sen-tence should include incarceration to make a strong impression on the defendant? Or, do you think the defendant should be sentenced to community-based corrections to provide him with an opportunity to change his behavior to keep him in the community and expose him to positive influences? As a judge you have an array of options: You may sentence the offender to probation with or without a requirement of community service, to a jail or prison, or to a combination of both community supervision and incarceration for varying lengths of time. Your final 40 Introduction to Corrections decision will most likely depend on your philosophy of sentencing, the types of sentencing available in your jurisdiction, and the vari-ous sentencing models designed to limit or minimize judicial discre-tion. Judicial discretion means that the judge decides the length and severity of the sentence for the convicted defendant based on relevant criteria such as severity of the crime, the defendant’s character, and social ties.

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  Enforcing Pollution Control Regulation

  Strengthening Sanctions and Improving Deterrence

  • Carolyn Abbot(Author)
  • 2009(Publication Date)
  • Hart Publishing

    (Publisher)

  In contrast, the courts in England and Wales imposed only six suspended sentences from 2004–06, considerably less than the 26 defendants sentenced to imprisonment. 99 However in 2007, the number increased and 11 defendants have had their custodial sentences suspended. This included one company director. 100 There are a number of benefits to incarceration namely, deterrence, rehabilita-tion, incapacitation and retribution. From a deterrence perspective, the seriousness of the sanction may deter the offender and others from committing future crimes, although as imprisonment is used so rarely in pollution cases, its deterrent impact (as an expected penalty) will be extremely limited. There is also some doubt as to the deterrent effect of imprisonment more generally, leading commentators such as Ashworth to conclude that ‘the preventive effects of custody are frequently overes-timated.’ 101 But Brian Preston the Chief Judge in the NSW LEC is supportive of the deterrent impact of custodial sentences, particularly when applied to corporate offi-cers for whom ‘the risk of imprisonment for criminal liability has a deterrent effect and provides a greater incentive to ensure corporate compliance.’ 102 Restricting the Freedom of Individual Offenders 96 See, eg, Water Resources Act 1991 s 85. Custodial sentences for waste offences have recently been extended to 12 months (magistrates’ court) and five years (Crown Court). See Clean Neighbourhoods and Environment Act 2005 s 41. 97 Information taken from Environment Agency Spotlight Reports . Details provided in Table VIII below. 98 See, eg, Provincial Offences Act 1990 (Ontario) s 72(1), Crimes (Sentencing Procedure) Act 1999 (NSW) s 12, and Powers of Criminal Courts (Sentencing) Act 2000 (England and Wales) s 118. 99 Information from Spotlight Reports. 100 Environment Agency, Spotlight on Business: 10 Years of Improving the Environment (Environment Agency, July 2008) 21.

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