1 Flashcards
Actors of the Criminal Justice System
- Judges
- Jury
- Legislators
- Offenders
- Police
- Prosecution
- Victims
- Witness
INTERDEPENDENT System rather than a PROCESS
Is criminal justice a “system”?
Criminal justice represents a wide range of (institutions, actors and practices), each has (objectives and values) and (and interactions) does that make it a coherent or interdependent actors who don't work systematically together
Is it good if it is a coherent system (if everything works together, closely, is it efficient) or our interdependent system
More accurate to talk about a criminal justice “process” since it is interdependent, term of system isn’t always straightforward
Definition of Criminal Justice
The formal response of the state to wrong doing”, legal institution, deals with people suspected of crime, convicting the guilty and exonerating the innocent, achieved by means of due process, fairness and equality before the law
crime control + deterrence
Ways of thinking of Criminal Justice
governance (Zedner 2004), a way of resolving disputes, managing risks, and protecting the public
Way of regulating social world- definitions of crimes and states- psychological etc
social institution (Garland 1990) its a way of a society regulating social order- regulates, governs and controls social order-serves a social function
it is a political system -criminal justice has become more politicised, especially since 1970s
- political parties campaign on law and order
- political suicide to be seen as soft on crime
Concept of discretion in practice
Attrition
ways cases are selected in and out of criminal justice system
Out of all offenses in one year in uk, 2% end up in formal court proceedings
Prosecution in Scotland
Crown office and the procurator fiscal
Procurator Fiscal
Crown office and the procurator fiscal
Prosecution in Scotland
Provides an independent public prosecution service, investigates sudden and suspicious deaths and handles complaints against the Police in Scotland. The Service has extensive responsibilities in the investigation and prosecution of crime. It decides whether or not to start criminal proceedings, even if the accused has not yet
been arrested or charged by the police, and the Crown is not required to give any reason for the decision
Crown Prosecution Service
Prosecutor in England and Wales
Prosecutor in England and Wales
Crown Prosecution Service
Barrister
A lawyer in Britain who has the right to argue in higher courts of law
rights of audience (that is, a right to plead)
lawyer in Britain who has the right to argue in higher courts of law
Barristers
Solicitor
Gives legal advice and deals directly with clients.
Perform legal research and investigates course work
Gives legal advice and deals directly with clients.
Perform legal research and investigates course work
Soliciter
Roles and Functions of Prosecution
1- state sanctioned power to raise criminal cases- prosecutor as representative of the public interest, there is a state monopoly on responses to violence, generally raised this over time from the state and victim, used to be victim’s family of victim’s responsibility, cool detached role as opposed to invested victim
role and functions. more than just a stage in the process and a set of actors,
an institution that has a set of important social functions and meanings:
represents:
prosecution represents staged opportunity for public affirmation of norms and wrongdoing an consequences of breach
durkheim said that it reinforces shared ideals and values over conduct
-sends message out to the public
- prosecution decisions shape number and nature of crimes prosecuted
- shapes type of crimes that come into court
- this is shaped by others too, police and victims
Collective Conscious
The totality of beliefs and sentiments common to the average members of a society forms a determinate system with a life of its own - Durkheim
expressive role
prosecution represents staged opportunity for public affirmation of norms and wrongdoing an consequences of breach
durkheim said that it reinforces shared ideals and values over conduct
What proportion of crimes committed result in conviction
2%
Models of Prosecution
1 model of legality
- mandatory prosecution where sufficient
- found in systems that have criminal and legal codes
- little prosecutorial discretion - written out in advance
- germany and italy
#2 expediency - us and uk -gives wide discretion and flexibility to prosecutor over decisions over most stages
- prosecutor has power to investigate crimes at an early stage of the process
- investigatory powers
most systems are actually hybrid models
Concept of public prosecution developed when in scotland
15th century
Accountability in Scottish law
Lord Advocate directly accountable to Scottish Parliament
Procurator Fiscal accountable only to Lord Advocate
Negative Aspects/Implications of Discretion
Subjective judgement
Potential for discriminatory practices
Disparity and inconsistency- not everyone treated equally, given the same punishments etc, dealt with differently
Tension with ideal of equality before the law
Positive Aspects/Implications of Discretion
Allows flexibility
Avoidance of harsh/indiscriminate application of rules
Mercy and compassion?
External Mechanisms that can control Discretion
accountability to parliament
statutory limits
court decisions
inspectorate of prosecution
public and media scrutiny
Internal Mechanisms that can control Discretion
marking guidelines and codes of practice (now published)
policy
ethical restraints
transparency about decisions
Sentencing Rationales
- Retribution
- Incapacitation
- Deterrence
- Reform and rehabilitation
- Protection of the public
- Reparation
discretionary sentencing by judges often characterized as
An intuitive rather than rational process
Justified retrospectively
Likely to result in inconsistency
David Hutton says what about discretion in sentencing
the decision comes first. In all but the hardest cases, the judges “know” what the right decision is, call this instinctive synthesis or whatever you like… if required to justify this decision, post facto arguments can be constructed
Studies of inconsistency in sentencing
little research carried out about sentencing inconsistency in uk
-some limited evidence of it (millie 2007)
more research done in US- Doerner JK (2010) found sentencing variations according to racial and social structured position in society
some limited evidence of inconsistency in scotland
sentencing commission of scotland said in a statement that although there is little evidence of it, there is“public perception of inconsistency in sentencing that is a danger to public confidence in the criminal justice system”
sentencing guidelines are likely to be implemented in scotland soon
More restrictive sentencing found in countries like the US that have
numerical grids - thought to increase punitiveness
What is the most common sentence given to convicted offenders
fines
How can prisons increase the odds of reoffending?
severance of ties with family and community; they draw resources away from services and institutions that benefit all Scotland’s citizens. Scottish Prisons Commission
stigmatization associated with prison sentence - getting a job
gangs? school of crime - how to commit crimes and avoid detection more effectively - internalize norms of subculture - low risk with high risk offenders
Recidivism
act of a person repeating an undesirable behavior after he has either experienced negative consequences of that behavior
- often refers to criminals
Solitary Confinement and Recidivism
The
increased stress of this extreme isolation and confinement may impair
inmates’ mental health, which in turn may cause them to commit more
violent acts, either within prison or upon release
Labeling theory and Recidivism
According to the school of thought known as “labeling theory,” when someone is punished for committing a criminal offense, he is effectively being labeled by the community as bad or deviant, and, in short, “[t]he person becomes the thing he is described as being.”
How many people in prison in US per 100,000
743
Relation between prison rates and crime rates
no relationship between prison rates and crime rates,
finland has lowered its prison population and its crime rate has flattened
More people are being held in prison for what?
more prisoners being held on remand (in prison waiting for sentencing)
more people being held for shorter sentences
89% of prisoners in scotland are being held for 6 months or less, shows that these crimes arent desperately serious
more prisoners being given shorter sentences
there is an argument that we are using prisons for people who are…
troubled and troubling, not people who are dangerous- prison being used as a dumping ground for these people
Commission on English Prisons Today, 2009
Prison Social Control
Commission on English Prisons Today, 2009
academics and policy makers
“Prison is demonstrably a highly selective tool for social control. It disproportionately targets black and ethnic minorities, the poor, the young, the troubled and the troubling. Prison, for example, is rarely deployed as a punishment for those responsible for state and corporate crimes.”
non numeric sentencing
“guidance by words” – sweden, not very prescriptive and still allow discretion in sentincing by judges
Ashworth (1992) considers three techniques for reducing sentencing disparity
(i) Statutory sentencing principles,
(ii) Judicial self-regulation, and
(iii) Numerical guidelines.
Statutory sentencing principles
The idea behind this approach is to declare the leading principles of sentencing in legislation, but leave the judges to apply and to individuate these principles.
Sweden and England are examples of countries in Europe, where this approach has been implemented
one of the three techniques for reducing sentencing disparity laid out by Ashworth 1992
Judicial self-regulation
one of the three techniques for reducing sentencing disparity laid out by Ashworth 1992
There are two central advantages of adopting a widespread fixed penalty system.
First, as, sentencing will become a more consistent and fair practice.
Secondly, there will be considerable economic savings to the community. Valuable court time will no longer
need to be spent ascertaining every minute detail concerning the offense and the offender.
Criticisms of Fixed Penalties
First, opponents argue fixed penalties are too tough. Second, they lead to unfairness.
The most common criticism of fixed penalties is that they are too severe. Fixed penalties are
regularly introduced as part of a `get tough on crime’ political agenda
The claim that many fixed penalty regimes are too harsh is well founded. A good example is
the three strikes law in California.
Canada explicitly rejected the use of presumptive guidelines in the 1980s, Western
Australia in 2000, while England and Wales declined their adoption in 2008.1
discretion in UK sentencing
sentencing guidelines with increasing levels of seriousness and culpability
offence specific guidelines and generic guidance
-more flexible than numeric guidelines
2 steps
1-starting points
2-aggravating and mitigating factors
This discretion is exercised within legislative boundaries
that set maximum penalties. The sentencing discretion is also structured by common
law sentencing principles and doctrines
The High Court of Justiciary
Scotland’s supreme criminal court. When sitting at first instance as a trial court, it hears the most serious criminal cases, such as murder and rape. Also hears criminal appeals
Trials before a single judge of serious crimes such as murder, rape, armed robbery and terrorism. Sitting with a jury of 15 with 3 verdicts: guilty, not guilty and not proven
Common law
refers to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than through legislative statutes or
executive action.
Mitigating factors
Facts which reduce the gravity of an offence by reason of unusual or extreme
elements leading up to or attending the commission of the offence.
Aggravating factors
Any circumstance attending the commission of a crime which increases its guilt or
enormity or adds to its consequences, but which is above and beyond the essential
constituents of the crime itself (e.g. racially or religiously aggravated offences)
Justice of the Peace Courts
deal with many minor offences, including breach of the peace, minor assaults, petty theft, and speeding
Sheriff Court
The majority of cases are dealt with in the country’s Sheriff Courts unless they are of sufficient seriousness to go to the Supreme Courts at first instance.
The Sheriff Court involves summary and solemn trials. The Judge is a qualified lawyer, known as a Sheriff, who must have at least 10 years legal experience. In summary criminal cases there is no jury and the Sheriff decides whether the accused is guilty or not and then decides the sentence. In solemn criminal cases, which are more serious cases, there is a Sheriff and a jury. The jury decides whether the accused is guilty or not and the Sheriff then decides the sentence.
Who decides in which court the case will be heard?
The Procurator Fiscal decides which court the case will be heard in. Generally cases in the sheriff court, Justice of the Peace Court
In BLANK trials there is no jury and a judge (justice of the peace or sheriff) decides whether the accused is guilty or not and then decides the sentence.
In summary criminal cases there is no jury and the Sheriff decides whether the accused is guilty or not and then decides the sentence.
In BLANK criminal cases, which are more serious cases, there is a judge (Sheriff or judge) and a jury.
In solemn criminal cases, which are more serious cases, there is a judge (Sheriff or judge) and a jury.
Plea in mitigation
Any factors that the accused’s lawyer thinks should be taken into account before the judge passes sentence after a finding of guilt.
Right to Counsel
Right to counsel means a defendant has a right to have the assistance of counsel (i.e., lawyers), and if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendants legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial.
The majority of state funded criminal defence work is provided by private lawyers contracted to the Legal Aid Agency and paid by the case under the legal aid scheme.
In Scotland a wider network of Public Defender Solicitor Office lawyers employed by the Scottish Legal Aid Board are available to represent those accused of crimes in addition to private lawyers paid under the legal aid scheme.
6th amendment
Mandatory Minimum Sentences
Mandatory minimum sentences are minimum sentences prescribed for a particular offence. The minimum sentence may be determined by the offender’s criminal record, as well as by the offence. Judges must sentence between the minimum and maximum penalties
to reduce sentencing disparity
Retribution
s the notion that the guilty ought to suffer the punishment
that they deserve
Deterrence
Deterrence aims to prevent future criminal activities
Rehabilitation
The assumption of rehabilitation is that people are not permanently criminal and that it is possible to restore a criminal to a useful life, to a life in which they contribute to themselves and to society
Rehabilitative theories involve a philosophy that the offender’s behaviour can be changed by using the opportunity of punishment to address the particular social, psychological, psychiatric or other factors which have influenced the offender to commit the crime
Incapacitation
An offender may be imprisoned for the purpose of preventing him or her committing further offences during the period of incarceration, in order to protect the community
In the mid 1970s the US implemented what style of sentencing, in an attempt to introduce more coherence and consistency
(Numeric) Grid Sentencing
Some grids allow judges to depart from the prescribed sentence range,after giving reasons for doing so, or in special circumstances. - flexibility
Most US State guidelines systems cover felony
crimes only, although some cover misdemeanours as well.
additional factors for the judge to conside
aggravating and or mitigating
- gravity of the offence
- impact on the victim
- offender’s circumstances (such as age, offending history, level of remorse shown)
What % of prisoners in Scotland are being held for 6 months or less,
89%
shows that these crimes aren’t desperately serious
trend of giving more short sentences, especially to none serious offences
the rise of the prison, wasnt till..
The 1800s. Before that, it was used to hold defendants before trial/punishment. wasnt a form of punishment in and of itself
held on remand - pre trial detention
During the 18th century, popular resistance to public execution and torture became more widespread both in Europe and in the United States, and rulers began looking for means to punish and control their subjects in a way that did not cause people to associate them with spectacles of tyrannical and sadistic violence. They began to look towards developing systems of mass incarceration as a solution
Held on Remand
Pre-Trial Detention
Jeremy Bentham
A 19th century British philosopher, and social theorist. He is regarded as the founder of modern utilitarianism.
Came up with a design for a prison he called the panopticon , maximize surveillance - thought surveillance would lead people to moderate their own behavior- like cctv
Prison as a Punishment includes what
- Deprivation of liberty
- Freedom of movement
- Freedom of association - Deprivation of goods and services - cigarettes, alcohol etc
- Deprivation of sexual relationships
- Deprivation of autonomy
- Deprivation of security
Sykes, G (1958)
could even by symbolic- power of the state
Prison as Rehabilitation includes what
- programs
- education
- addressing
- drug treatment
- counselling
prison is a dumping ground for
prison is a dumping ground for troubled
multiply disadvantaged
Benefits of community punishment
“Most community penalties are less punitive, less destructive of people’s lives, cheaper, more flexible, and more readily adapted to the particular needs of the offender” (Zedner, 2004)
•Cheaper
•Flexible
•Maintain links with family, work and wider community
•Not as stigmatizing
•Allow offender to ‘pay something back’ to the community (Scottish Government 2007)
Criticisms of Community Punishment
in 1980s when community punishment began to be used more and more there was a rash to criticize them. they become disproportionate and intrusive.
•Appears to be benign, but:
–Greater sentence than that merited by offence
–Lack of due process and proportionality (Cohen 1985) (punishment not decided by judges but others who are basically diagnosing you)
–‘Sentence stacking’ and ‘up-tariffing’ (risk of jail if you fail) longer and longer sentences if you fail
–Encourages recourse to formal justice
-it can lead to pulling less serious offenders higher up into the system
•“Extension and multiplication of the judicial gaze” further into the lives of offenders(Garland 1985)
•The “dispersal of discipline” through other institutions into other professions now all doing the states work. (Cohen 1985) other professionhs all doing states work. states work and control being dispersed through other professions beyond criminal justice system. result is net widening
•“Net widening”: (Cohen 1985) more offenders being pulled in. we think we can do something to help them. new kinds of people. troubling. kept in for longer. we dont always know who is holdiont the net/none crim justice people
–Nets get bigger (catching more offenders)
–Cast in different parts of the sea (catching different offenders)
–Holes in the net are smaller (keeping offenders longer)
–Net is not always visible
“Net widening”
•“Net widening”: (Cohen 1985) more offenders being pulled in. we think we can do something to help them. new kinds of people. troubling. kept in for longer. we dont always know who is holdiont the net/none crim justice people
–Nets get bigger (catching more offenders)
–Cast in different parts of the sea (catching different offenders)
–Holes in the net are smaller (keeping offenders longer)
–Net is not always visible
community punishment
Restorative justice may widen the net of social control by receiving cases that the formal court-system would not have received, or by imposing sanctions not utilized by the formal justice system
Scottish Prisons Commission 2008 - Payback
“In essence, payback means finding constructive ways to compensate or repair harms caused by crime. It involves making good to the victim and/or the community. This might be through financial payment, unpaid work, engaging in rehabilitative work or some combination of these and other approaches. Ultimately, one of the best ways for offenders to pay back is by turning their lives around. Perhaps surprisingly, offender rehabilitation is often a major concern of crime victims who want to make sure that no-one else suffers victimisation and who see the offender’s rehabilitation as the surest way to secure this outcome”
“Engaging communities in fighting crime: a review by Louise Casey” (Ministry of Justice 2008)
Community Payback:
–The work should be more visible and demanding, not something any member of the public would choose to do themselves
–The local community should receive information about it and who is doing it.
–Offenders should wear brightly coloured tabards
–Work should involve an increased loss of personal time/liberty through greater intensity and frequency of hours
Sex
biological categories
Gender
social roles learned/constructed/ attributed to groups of people
is the criminal system just a representation of the gender roles projected in society?
Dowds and Hedderman (1997)
looked at sentencing for 3 types of offence
Shoplifting (stereotypical female offence)
o Women more likely to be discharged or given probation order
o Women less likely to be fined or given custody
Violence offences (stereotypical male offence) o Men and women stood equal chance of prison for first offence o Repeat offenders: women less likely to be given custody than men
Drugs offences (gender neutral offence) o Female first offenders less likely than male first offenders to be given custody o Repeat offenders: men and women have an equal chance of custody
‘Chivalry Thesis’
Women treated more leniently than men because judges (mostly men) cannot bear imprisoning women
Farrington 1983
Female offenders more likely to be seen as..
‘troubled’ than ‘troublesome’
Gelsthorpe and Loucks (1997) Group/individual interviews with 197 magistrates at 5 courts using semi-structured questionnaire and small sentencing exercise
Findings:
Magistrates see fewer women defendants so find it hard to compare sentencing of male/female offenders
o Men more sympathetic to female offenders
o Female magistrates perceived as harsher
o Men defer to women in dealing with female offenders
Findings:
o Female offenders more likely to be seen as ‘troubled’ than ‘troublesome’
o Women more likely to be perceived as remorseful and respectful
o Tendency to avoid custody for women except as a last resort
o But found that sentencing differences not simply a reflection of deliberate discrimination
Gender and mitigating factors
o Evidence to indicate gendered dimension to these mitigating factors - Gelsthorpe and Loucks (1997)
Family responsibility:
o Female offenders assumed to have childcare responsibilities
o For men, being a parent only mitigating factor if sole carer
Remorse:
o Female offenders perceived to be more deferential and respectful
Employment:
o Seen as more important for men
o Unemployed men = ‘layabouts’
o Unemployed women = ‘doing all they could’
The Family-Based Justice approach
Courts are concerned to shield families and children from unpleasant and destructive consequences of incarceration of major carers
Women more likely to be/perceived to be main caregivers
Consequently, women less likely to be given custodial sentences
Justice and Gender
Treating people in a way that takes into account the important differences between male and female offenders? - one size fits all justice
Evidence of Family-Based Justice approach?
Gelsthorpe and Loucks (1997)
Magistrates concerned about impact of punishment on family of women
Less likely to award custodial sentences to women
Also less likely to give fines to women:
Women not perceived to have own income (family that suffers)
Concerns about implications for family if fine awarded
Similar concerns not evident in punishment of male offenders
Double deviance thesis
Leniency towards female offenders only extends to those who fit appropriate gender roles
Women who transgress both criminal law and gender norms receive more severe punishment
Women typically seen as ‘sad, mad or very bad’
myra hindley, murder of children - goes again maternal instincts, transgress roles of gender
Myra Hindley
murdered 5 children
goes again maternal instincts, transgress roles of gender
Double Deviance Theory Leniency towards female offenders only extends to those who fit appropriate gender roles
Women who transgress both criminal law and gender norms receive more severe punishment
Women typically seen as ‘sad, mad or very bad’
Evidence of Double-deviance thesis?
Worrall (1987)
Female offenders with domestic responsibilities treated more leniently
Young single women and women in positions of authority were not treated sympathetically
Certain crimes identified as ‘women’s crimes:
o Shoplifting
oSoliciting
o Social security fraud
Crimes outside these categories of ‘women’ crimes’ were considered less acceptable (Worrall, 1987)
Crimes which could not be attributed to women’s roles considered as an expression of masculinity/lack of femininity or pathology
Violence by women seen as particularly problematic and ‘unfeminine’
Corton Vale Prison
currently Scotland’s only establishment dealing with female offenders
Built in 1975
Design capacity = 309 places
However, due to overcrowding, currently also 110 women held at HMP Edinburgh and 53 at HMP Greenock
has been described as being in a ‘state of crisis’ (HM Chief Inspector of Prisons, 2009
The problems of women’s imprisonment
Women in prison often present with levels of drug/alcohol dependency
Often have a history of physical, sexual and emotional abuse
Higher concentration of vulnerable groups than in male prisons, including those with a history of mental health problems and self harm
The different impact of imprisonment on women:
oWomen more likely to be primary carers of young children
oSmall number of prisons and their geographical location mean women typically imprisoned further from their homes and families
oPrison was designed for men without taking into account women’s routes into crime or different needs
(see The Corston Report, 2007)
by age of 30, BLANK% of men with major mental disorder had a criminal conviction compared to BLANK% with no mental disorder
by age of 30, 50% of men with major mental disorder had a criminal conviction compared to 32% with no mental disorder
Cruel and unusual punishment
These exact words were first used in the English Bill of Rights in 1689, and later were also adopted by the Eighth Amendment to the United States Constitution (ratified 1791)
8th Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Victims and Reporting
victims are the gate keepers of cjs- we rely on them to report crime to police
victims in cjs- to report or not to report Too trivial Police won’t care/be able to do anything Personal matter Fear of reprisal Offender was a family member Felt responsible Compensation?
Victims more likely to report crime if
presence of a weapon (+)
Injury (+)
perceived seriousness of the offence (+)
the victims’ relationship to the offender (-)
the value of items lost or damaged/insurance (+)
fear of retaliation (-)
Skogan,1984
3 different Victim’s rights
Service Rights: compensation, proper treatment at court, assistance testifying etc
Expressive Rights: the opportunity to express oneself at key stages of the CJ process
Participatory Rights: providing direct input which may influence key decisions including bail, sentencing and parole (not in uk, but some parts of europe)
Service Rights
compensation, proper treatment at court, assistance testifying etc
1 of the rights of victims also expressive and participatory
Expressive Rights
the opportunity to express oneself at key stages of the CJ process
1 of the rights of victims also participatory and service
Participatory Rights
providing direct input which may influence key decisions including bail, sentencing and parole (not in uk, but some parts of europe)
1 of the rights of victims also service and expressive
Only a small proportion of victims take up available services for many reasons…
service rights
Don’t report
Unaware they exist
Sufficient social/familial support
Labeling/stigma
Criminal Injuries Compensation Authority (CICA) may determine to be ineligible for compensation for any of the following reasons:
your behaviour before, during or after the incident in which you were injured
your criminal record
your failure to co-operate with the police, or with CICA
delay in informing the police, or other organisation, or person of the incident
Secondary victimisation
Also known as double or post crime victimisation
Occurs after the original victimizing incident
May take the form of victim blaming, stigmatization, inappropriate language/behaviour, re-traumatising (ie in court), sense of injustice
Victim Impact Statements
Intended to ‘give victims a voice in court’ by allowing them to tell the court about the effects the crime had on them
Of those who took part in a pilot scheme, 61% said the statement helped them feel better and 83% said they were glad to have participated
Of those who took part in a pilot scheme,BLANK% said the statement helped them feel better and BLANK% said they were glad to have participated
Of those who took part in a pilot scheme, 61% said the statement helped them feel better and 83% said they were glad to have participated
Victim Impact Statements
Intended to ‘give victims a voice in court’ by allowing them to tell the court about the effects the crime had on them
Victim impact statements are written or oral information from crime victims, in their own words, about how a crime has affected them. All 50 states allow victim impact statements at some phase of the sentencing process. Most states permit them at parole hearings, and victim impact information is generally included in the pre-sentencing report presented to the judge.
Of those who took part in a pilot scheme, 61% said the statement helped them feel better and 83% said they were glad to have participated
Of those who took part in a pilot scheme,BLANK% said the statement helped them feel better and BLANK% said they were glad to have participated
Of those who took part in a pilot scheme, 61% said the statement helped them feel better and 83% said they were glad to have participated
used across scotland
- retribution
- incapacitation
- deterrence
- reform and rehabilitation
- protection of the public
- reparation
are what?
sentencing rationales, part of what is called sentencing theory
What does the Scottish Prisons Commissions 2008 say are the problems that underscore prisons today?
Prisons can increase the likelihood of reoffending more often than reduce it; they deepen the alienation of individuals from communities; they draw resources away from services and institutions that benefit all Scotland’s citizens. It is an option to be used only as a last resort.
True or false, there is a relationship between imprisonment and reoffending rates
False, there is no relationship between imprisonment and reoffending rates
What is the purpose of prisons?
“There is no agreement about the purpose of prisons. There is little political consensus and no public consensus. So improvement means different things to different people.”
Andrew McLellan, former HM Inspector of Prisons 2009
there is none, think of sentencing rationales
which of the rationals serves as the justification
Who said
“Prisons are an expensive way of making bad people worse”
Home Office 1990
The “pains of imprisonment” (Sykes, G (1958): Society of Captives)
- Deprivation of liberty
- Freedom of movement
- Freedom of association - Deprivation of goods and services - cigarettes, alcohol etc
- Deprivation of sexual relationships
- Deprivation of autonomy
- Deprivation of security
rehabilitation includes what?
- programs
- education
- addressing
- drug treatment
- counselling
counseling is most effective when..
is voluntary. short sentences militate against it
2008- report by scottish commission on prison
suggested solutions
- reduce the use of prison- use custodial sentences less
- restrict it to most serious offenders
- use community sentences as an alternative
Who lists these suggested solutions
- reduce the use of prison- use custodial sentences less
- restrict it to most serious offenders
- use community sentences as an alternative
2008- report by scottish commission on prison
Compared to the general population, male prisoners in the UK are:
X times more likely to have been in care as a child
13
Compared to the general population, male prisoners in the UK are:
X times more likely to be HIV+
15
Compared to the general population, male prisoners in the UK are:
X times more likely to be unemployed
13
X% of male prisoners in the UK have mental health or drug problems (higher for women)
70% have mental health or drug problems
Community Order
Community Order
•Order made for specified period of time
•Under supervision
(a probation officer (England/Wales) or social worker (Scotland))
•Meet regularly for reports
•Undertake ‘requirements’
(e.g. unpaid work, drug treatment, alcohol therapy, CBT counselling, curfews, tagging, etc)
•If conditions are not met, offender is returned to court
Benefits of Community Punishments
“Most community penalties are less punitive, less destructive of people’s lives, cheaper, more flexible, and more readily adapted to the particular needs of the offender” (Zedner, 2004)
•Cheaper
•Flexible
•Maintain links with family, work and wider community
•Not as stigmatizing
•Allow offender to ‘pay something back’ to the community (Scottish Government 2007)
Need for censure in community punishment?
people wearing jumpsuits differentiation while doing community punishment- should there be a need for censure. some people view it as a negative. stigmatizing. it separates people in society
People who criticize Community Punishment say it is
disproportionate and intrusive
–Greater sentence than that merited by offence
–Lack of due process and proportionality (Cohen 1985) (punishment not decided by judges but others who are basically diagnosing you)
–‘Sentence stacking’ and ‘up-tariffing’ (risk of jail if you fail) longer and longer sentences if you fail
–Encourages recourse to formal justice
-it can lead to pulling less serious offenders higher up into the system
“dispersal of discipline”
charge against community punishment
“dispersal of discipline” through other institutions into other professions now all doing the states work. (Cohen 1985) other professions all doing states work. states work and control being dispersed through other professions beyond criminal justice system. result is net widening
“Net Widening”
(Cohen 1985) more offenders being pulled in. we think we can do something to help them. new kinds of people. troubling. kept in for longer. we dont always know who is holdint the net/none crim justice people
Payback
In essence, payback means finding constructive ways to compensate or repair harms caused by crime. It involves making good to the victim and/or the community. This might be through financial payment, unpaid work, engaging in rehabilitative work or some combination of these and other approaches. Ultimately, one of the best ways for offenders to pay back is by turning their lives around. Perhaps surprisingly, offender rehabilitation is often a major concern of crime victims who want to make sure that no-one else suffers victimisation and who see the offender’s rehabilitation as the surest way to secure this outcome”
(Scottish Prisons Commission 2008)
Gender
social roles learned/constructed/ attributed to groups of people
Is the criminal justice system a representation of the gender roles projected in society
Apparent ‘leniency’ only applies to women who fit particular
stereotypical gender roles
‘Chivalry Thesis’
Women treated more leniently than men because judges (mostly men) cannot bear imprisoning women
Sentencers therefore act chivalrously or paternalistically towards women in sentencing (see Farrington & Morris, 1983
net widening and youth
Pulling juveniles into the juvenile justice system who wouldn’t otherwise be involved in delinquent activity; applies to many status offenders,- would be in the system if non formal proceedings were utilized
Definition of Restorative Justice
Mediation between victims and offenders whereby a suitable punishment is imposed and agreed to by offender and victim; usually involves victim compensation and some offender service.
Rational Choice Theory
People will engage in delinquent and criminal behavior after weighing the consequences and benefits of their actions. Delinquent behavior is a rational choice made by a motivated offender who perceives the chances of gain as outweighing any perceived punishment or loss.
Biosocial Theory
Human behavior is a function of the interaction of biochemical, neurological, and genetic factors with environmental stimuli.
Psychodynamic View
Criminals are driven by unconscious thought patterns, developed in early childhood, that control behaviors over the life course.
Entrapment
A criminal defense that maintains the police originated the criminal idea or initiated the criminal action.
Bill Of Rights
The first 10 amendments to the U.S. Constitution.
Probable Cause Hearing (US)
Term used in some jurisdictions for a preliminary hearing to show cause to bring a case to trial.
adjudication
the process of determining whether the defendant is guilty
White Collar Crime
financially motivated nonviolent crime committed by business and government professionals
first defined by sociologist Edwin Sutherland in 1939
stop and search power in uk
Police and Criminal Evidence Act 1984
section 60 of the Criminal Justice and Public Order Act 1994
Per 1,000 of the population, Black persons were Stopped and Searched X times
more than White people in 2010
and X times more in 2007
Per 1,000 of the population, Black persons were Stopped and Searched 7.0 times more than White people in 2010 compared to 6.0 times more in 2007
Ministry of Justice
Per 1,000 population, Black persons were arrested X times more than White people
3.3
Per 1,000 population, Black persons were arrested 3.3 times more than White people
Ministry of Justice
In the majority of homicide cases, victims were suspected of being killed by someone from BLANK, which is consistent with previous
trends
the same ethnic group
Ministry of Justice
Per 1,000 of the population, Mixed persons were Stopped and Searched X times more than White people in 2010
Per 1,000 of the population, Mixed persons were Stopped and Searched 2.8 times more than White people in 2010 Ministry of Justice
looked at sentencing for 3 types of offence
Dowds and Hedderman (1997)
Shoplifting (stereotypical female offence)
o Women more likely to be discharged or given probation order
o Women less likely to be fined or given custody
Violence offences (stereotypical male offence) o Men and women stood equal chance of prison for first offence o Repeat offenders: women less likely to be given custody than men
Drugs offences (gender neutral offence) o Female first offenders less likely than male first offenders to be given custody o Repeat offenders: men and women have an equal chance of custody
Mental health and homicide
Mental health and homicide
•People with mental disorders commit fewer homicides than people without
•Homicides by people with mental disorders have declined
• Psychiatric patients are more likely to kill themselves than others
(Taylor and Gunn, 1999; Appleby et al, 2006)
What percent of crime unreported
victim surveys
Best estimate of ‘true’ rate of victimisation (38 – 43% unreported)
weakness of victim surveys
victimless crimes not reported- shoplifting, prostitution, victim may not know they have even been the victim of a crime
‘Victimless crimes’
Victim may not see themselves as such
Victim may not know crime has been committed (ie fraud)
Memory
Representativeness of samples (selection bias, response bias)
Argument against victim participation and participatory rights
Undermine the foundational principles of a State-led prosecution system
•‘inevitably’ some victims will demand disproportionate punishment
•Use of victims to promote increased punitiveness
•Undermine offender rights (zero sum?)
•Demonisation of offenders
•Focus on individual vs society
Argument for victim participation and participatory rights
- Legitimacy/ Procedural justice
- Participation/cooperation and reporting
- Acknowledgement/recognition of victim status
- Healing/rehabilitation?
- Equality (Pre-Sentence Report)
- Democratic sentencing
- Victim satisfaction
restorative justice outcome
repair of harm through collective resolution among stakeholders
Definition of crime from conventional cjs to restorative justice
- Crime is defined as ‘lawbreaking’
- The state (not the individual) is the victim
- The focus is on establishing guilt…
- …through adversarial contact (i.e. a trial)…
- …so that just deserts can be determined…
- And an appropriate amount of pain (punishment) can be inflicted
restorative jusice
•Crime is a harm
•Done to individual victims, and communities
(‘a violation of a person by another person’: Zehr 1990, p182)
•The focus is on problem solving…
•… through dialogue and negotiation…
•…so that harm can be understood …
•… and conflicts can be resolved through reconciliation
Only BLANK out of 5 of the rioters in the London rioters were under the age of 25
1
Youth offending often associated with
–Abuse –Chaotic families –Social exclusion –Poverty –Drug/ alcohol abuse –Truancy and school exclusion (e.g. Graham and Bowling 1995, McAra and McVie 2010)
Youth Justice and Prisons new
youth justice somewhat new. think… even youth itself is new
child savers.. calling for different prisons etc
•Youth prisons (Parkhurst -1838) •1840s: ‘the child savers’ –Reformatories (1854 Act) –Industrial schools (1857 Act) •‘The deprived and the depraved’ •1908: youth courts established
source of modern imprisonment
eastern state penitentiary in philadelphia- about 150 years of use
functional part of prison design for a long period
outer cell - little exercise yard - principle of isolation - philidelphia/seperate system- popular in 19th cent throughut the world
jeremy benthem- panoptic principle- 1787- a way of obtaining power, power of mind over mind, in a quantity hitherto without example
forces individual to reflect upon themselves and moderate their own behavior
thought it was the best way of saving these people’s and their souls
penetential isolation to reflect upon sins
1990 peak age of offending Men X, Women X
Men 18, Women 15
according to a 2001 British crime survey WHO were most at risk for violent crime
according to a 2001 British crime survey young men aged 16 to 24 were most at risk for violent crime
women make up WHAT% of the total prison population
4
WHAT % of women prison convicts are mothers
60%
Forms of Restorative Justice
victim-offender mediation
family group conferencing
Restorative Conferencing
Community justice committees
Sentencing circles
victim-offender mediation
a meeting in the presence of a trained mediator
The mediation process is more likely to fully meet its objectives if the victims and offenders meet face-to-face, can express their feelings directly to each other, and develop a new understanding of the situation.
With the help of a trained facilitator, they can reach an agreement that will help them both bring closure to the incident. In fact, the facilitator usually meets with both parties in advance of a face-to-face meeting and
can help them prepare for that occasion. This is done to make sure the victim is not re victimized
The offender must accept or not deny responsibility for the crime; Both the victim and the offender must be willing to participate; Both the victim and the offender must consider it safe to be involved in the process
Which Amendment includes “no unwarranted searches or seizures”
4
4th Amendment
prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.
family group conferencing
a wider circle of participants than a victim offender mediation. Includes people connected to the primary parties, such as family, friends and professionals. FGC is often the most appropriate system for juvenile cases, due to the important role of the family in a juvenile offender’s life.
Restorative Conferencing
a voluntary, structured meeting between offenders, victims and both parties’ family and friends, in which they address consequences and restitution
Sentencing Circles
involve all interested parties. Sentencing circles typically employ a procedure that includes: (1) application by the offender; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle; and (5) follow-up circles to monitor progress
Sentencing circles are conducted in many aboriginal communities in Canada. In circle sentencing all of the participants, including the judge, defence counsel, prosecutor, police officer, the victim and the offender
and their respective families, and community residents, sit facing one another in a circle
Discussions among those in the circle are
designed to reach a consensus about the best way to resolve the conflict and dispose of the case,
Looking glass self
A concept, created by Charles Cooley in 1902 (McIntyre 2006), stating that a person’s self grows out of their interactions with others in society. People shape their self-concepts based on their understanding of how others perceive them
Part of the wider concept of Symbolic Interactionism, a way of looking at how humans ascribe meaning to symbols and people by George Herbert Meade in the early 20th century
Labeling Theory
This model in its modern form was adopted into national legislation and applied to the youth justice process in New Zealand in 1989, making it at the time the most systemically institutionalized of any existing restorative
justice approaches
Community and family group
conferencing
After the US who what countries have the highest rates of incarceration per 100,000
Rwanda 492
Russia 475
Brazil 275
How many people are currently held in prisons in the US
2.2 million
Drug Policy
Sentencing policies of the War on Drugs era
resulted in dramatic growth in incarceration for
drug offenses. Since its official beginning in
1982, the number of Americans incarcerated for
drug offenses has skyrocketed from 41,000 in
1980 to half a million in 2011
Sentencing policies of the War on Drugs era
resulted in dramatic growth in incarceration for
drug offenses. Since its official beginning in
1982, the number of Americans incarcerated for
drug offenses has skyrocketed from 41,000 in
1980 to half a million in 2011
At the federal level, prisoners incarcerated
on a drug conviction make up what percent of the prison
population
50%
Blank in 3 black males in the US will go to prison in their lifetime
1 in 3. it is 1 in 17 for white men
Contributing factors to African American Incarceration
“Get tough on crime” and “war on drugs” policies
Mandatory minimum sentencing, especially disparities in sentencing for crack and powder cocaine possession
While people of color make up about X percent of the United States’ population, they account for X percent of those imprisoned.
While people of color make up about 30 percent of the United States’ population, they account for 60 percent of those imprisoned.
The prison population grew by X percent from 1970 to 2005, a rate that is outpacing crime and population rates
The prison population grew by 700 percent from 1970 to 2005, a rate that is outpacing crime and population rates
African-American males are X times more likely to be
incarcerated than white males and X times more likely than Hispanic males.
African-American males are 6 times more likely to be
incarcerated than white males and 2.5 times more likely than Hispanic males.
Which amendment guarantees right to counsel
6th
4, 6, 8 Amendments
4 - prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.
6 - guarantees right to counsel
8 - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted
Penal Transportation
Penal transportation of convicted criminals to penal colonies in the British Empire - in the Americas from the 1610s to the 1770s and in Australia between 1788 and 1868 - was often offered as an alternative to the death penalty, which could be imposed for many offenses
Hulks
As the practice of penal transportation was steadily curtailed in England at the end of the 18th century, a popular alternative emerged. Old sailing vessels, which came to be called hulks, were used as places of temporary confinement.
John Howard
notable early prison reformers. After having visited several hundred prisons across England and Europe, in his capacity as high sheriff of Bedfordshire, he published The State of the Prisons in 1777. He was particularly appalled to discover prisoners who had been acquitted but were still confined because they couldn’t pay the jailer’s fees. He proposed wide ranging reforms to the system, including that each prisoner should be in a separate cell, that staff should be professional and paid by the government, that outside inspection of prisons should be imposed, and that prisoners should be provided with a healthy diet and reasonable living conditions
Norway and Sweden’s incarceration rate
in the mid 70’s per 100k
incarceration rate for UK
153
