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Principles of Sentencing Lecture

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Principles of Sentencing Lecture Notes

There are five general aims or functions or justifications of punishment:


There is a belief that punishment for crime can deter people from offending.

There are two forms:

Specific deterrence is concerned with punishing an individual offender in

the expectation that he will not offend again.

General deterrence is related to the possibility that people in general will

be deterred from committing crime by the threat of punishment if they are



How this aim is effected

– Prison sentence/long prison sentence

– Heavy fine



Imprisonment, the most serious punishment in the UK, does not always deter

further offending:

– According to a Home Office study, 58% of all sentenced prisoners

discharged in 1995 were reconvicted of a serious offence within two years of

being released. Among young offenders, 76% were reconvicted (Reconviction of

Offenders Sentenced or Released from Prison in 1995, April 1999).

At least two points are assumed to be essential for deterrence to be


1. Supporters of deterrence believe that the punishment must be sufficiently

severe for it to have a deterrent effect. This assumption can be tested by

examining an instance where the level of punishment was altered.

– In 1965, the death penalty was abolished as a punishment for murder.

Research indicates that this change had no readily definable impact on the rate

of murders. This challenges claims that

in America, every execution deters seven or eight other murders.

– A recent Home Office report concludes that there is no basis for inferring

that increasing the severity of sentences generally is capable of enhancing

deterrent effects (Criminal Deterrence and Sentence Severity: An Analysis of

Recent Research, 1999).

2. Supporters of deterrence assume that potential offenders weigh up the

rewards and risks associated with crime. However, the extent to which people

believe they might be caught is probably more important than the actual risk of

detection, or the level of punishment.

– The Home Office paper, Criminal Deterrence and Sentence Severity, suggests

that for at least some classes of potential offenders, their perceptions of the

risks of being apprehended and punished (when they are aware of such risks)

affect their reported choices of whether to offend.

– Social ties, or the lack of them, affect the deterrent effects of the

criminal justice policies – with persons having strong social ties (ie, strong

links to families, local communities, etc) being more readily deterred by

prospects of being apprehended. Persistent offenders with weak social ties, such

as persistent burglars, often act impulsively, and in circumstances that they

themselves define as a situation of pressing need. Such impulsivity may reduce

these offenders’ amenability to being deterred through increased penalties (Criminal Deterrence and Sentence

Severity, 1999).


Rehabilitation involves offering an offender help

to overcome problems which he faces, thereby attempting to make it easier for

him or her to avoid future offending.

This can include various types of assistance provided in prison or in the

course of a probation order which are intended to help the offender to improve

his social skills, his employment prospects, or his capacity to obtain welfare


Rehabilitative ideals can be seen in the official terms of reference of some

of those dealing with offenders after conviction:

– The duty of the Prison Service is to treat inmates “with humanity and

to help them lead law abiding lives in custody and after release”

(Statement of Purpose, 1988).

– Probation officers should ‘advise, assist and befriend clients’.

How this aim is effected

– Individualised sentence

– Community penalty, ie a Community Service Order, Probation Order or

Combination Order.


The viability of rehabilitation has been challenged:

– A recent Home Office study found that there was no discernible difference

between reconviction rates for custody and community penalties. 56% of offenders

who commenced community penalties were reconvicted within two years in

comparison with 58% of all sentenced prisoners (Reconviction of Offenders

Sentenced or Released from Prison in 1995, April 1999).

Evaluating the effectiveness of sentences in reducing re-offending is


– The fact that someone is not reconvicted does not mean he has stopped

offending. He might simply be better at not getting caught.

– Although we can see what happens to an offender after he has been through a

programme of rehabilitation, we cannot predict what would have happened if his

sentence had not contained such elements.

Offenders may experience social problems after completing their sentence:

– Two researchers, Bottoms & McClintock, attributed a social problem score to

ex-Borstal trainees in 1973. Only 18% of those with the lowest scores were reconvicted,

whereas 82% of those with the highest scores were reconvicted. In practice,

those who had made the poorest social adjustment after their release were most

likely to become recidivists.

– Adult offenders with multiple social problems (ie, accommodation,

employment, alcohol, drugs and finance) are more likely to be reconvicted (Explaining reconviction following a community sentence: the role of social

factors, Home Office 1999). Also, reconviction rates are higher for those with

more previous convictions (Reconviction of Offenders…, Home Office 1999).


Protection of the public is one of the major justifications claimed for

punishment. For example, imprisonment leads to the incapacitation of offenders

so that they are prevented (at least temporarily) from offending against the

public at large.

How this aim is effected

– Death penalty for murder

– Long prison sentence

– Electronic tagging (Curfew Order)


The execution of an offender will obviously protect the public from that


Imprisoning an offender will prevent him from committing crimes against

members of the public. However, the situation is not that simple:

– The experience of prison may be such that the offender is more likely to

re-offend after release, and perhaps to commit more serious crimes. If this is

so, crimes are not prevented, but merely deferred.

– Some prisoners continue to commit offences, including serious assaults and

homicides, while in custody.

Another problem also arises. Offenders who are never caught will not be

affected by the imprisonment of less elusive offenders:

– Some now believe that recorded crime rates would

not be substantially affected if fewer offenders were sent to prison. This was

acknowledged in the Home Office Handbook, The Sentence of the Court (1986).

Nevertheless, the incapacitation of an individual offender, who poses a

danger to the public, can protect the public from that particular offender, eg,

a mass murderer or a serial rapist.

A curfew order may include the requirement of electronic monitoring of the

offender’s whereabouts during the curfew period.


Retribution rests on the notion that if a person has knowingly done wrong, he

or she deserves to be punished.

This idea was at the heart of the previous Conservative Government’s White

Paper “Crime, Justice and Protecting the Public” (1990). The

Government’s aim, repeated several times, was to ensure that convicted criminals

receive their ‘just deserts’.

How this aim is effected

– Tariff sentence


Punishing offenders satisfies the requirement that where a rule imposes a

penalty for its own breach, that penalty must be imposed when the rule is



One justification for imposing penalties is that they denounce particular

types of behaviour, and reaffirm the validity of moral attitudes to that

behaviour. The previous Conservative Government’s White Paper suggested several

times that punishment can denounce criminal behaviour and express public

repugnance of it.

How this aim is effected

– Sentence reflecting the blameworthiness of the offence


An ironic feature of a denunciatory sentence is that it does not have to be

complied with. The passing of the sentence, provided the public expects that it

will be carried out satisfies the symbolic function.


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