sentencing and punishment Flashcards
What are the 3 philosophical justifications for punishment?
-Retribution
-Reduction
-Restoration
Describe retribution
-Backwards looking
-Punishment has to be proportionate to seriousness of crime
-Denunciation
Describe reduction
-Forwards looking
-Reduce crime
-General and individual deterrence
-Rehabilitation and correction (targeted interventions)
-Incapacitation (take away ability to commit a new crime)
Describe restoration
-Alternative approach
-Restorative justice (helping victim)
-Reparation
-Restitution
What are the statutory aims of sentencing for adults?
-Defined by Sentencing Act 2020, Section 57
-Punishment of offenders
-Reduction of crime
-Reform and rehabilitation of offenders
-Protection of public
-Making of reparation by offenders
What are the statutory aims of sentencing for children?
-Defined by Sentencing Act 2020, Section 58
-To prevent (re)offending by people under 18
-Welfare of people under 18 such as provision of education
What happens if the defendant pleads not guilty?
-Trial held
-Separate sentencing hearing may occur for aggravating and mitigating factors
-Probation may provide Pre-Sentence Report
What is an aggravating factor?
-Makes the crime more serious e.g. burgling someone’s house whilst they are asleep
What is a mitigating factor?
-May reduce your sentence e.g. having mental health issues
What is an example of mandatory sentence?
-If someone has committed murder then they have to have life imprisonment, there are no other options
What happens if the defendant pleads guilty?
-Either defence and prosecution agree on facts or dispute over facts
-Court may hold ‘Newton hearing’ where some facts said by prosecution may not be correct and so these facts get checked
What punishments can be given to adults?
-Discharge
-Fines
-Community sentence
-Determinate prison sentence
-Suspended prison sentence
-Extended sentence
-Life sentence
What punishments can be given to children?
-Discharge
-Fines
-Referral orders
-Youth rehabilitation orders
-Custodial sentences
What is the custodial threshold?
-Asks whether the offence is so serious that neither a fine or community sentence can be justified for it
-Reserve prison sentence for most serious offences
What 3 things does the Threshold test look into?
-Harm caused by the crime
-Culpability of offender
-Any relevant previous convictions
Describe ‘harm caused by the crime’
-Injuries and impact on victim
-Financial losses
-Property damage
-Community impact
Describe ‘culpability of offender’
-Age and maturity
-Role in the offence
-Whether it was forced, voluntary, planned, opportunistic, intentional, reckless etc.
Describe ‘any relevant previous convictions’
-Assess whether defendant is a persistent threat to the public
What 2 sentences are we comparing when we talk about ‘offences that fall on the cusp of the threshold’?
-High level community sentence
-Short term prison sentence
Describe high level community sentence
-Drug/alcohol problems are quite common among prisoners serving short sentences
-Hard to access treatment in prison due to long waiting list
-Lose jobs, housing and benefits due to short sentence
Describe short term prison sentence
-Given to ‘first timers’ and ‘revolving door offenders’
-Prison staff think it’s difficult as to what to do with those serving short sentences
-Creates negative mindset and leaves offenders feeling institutionalised
What is the guilty plea discount?
-Benefits apply regardless of strength of evidence
When does a maximum 1/10 discount apply?
-If defendant waits until first day of trial to enter guilty plea
When does a maximum 1/4 discount apply?
-Where defendant enters guilty plea after first opportunity but before first day of trial
When does a 1/3 discount apply?
-If guilty plea is entered at first available opportunity
What are the good things about guilty plea discount for victims?
-Less pressure
-Quicker results
What are the good things about guilty plea discount for witnesses?
-No need to testify
What are the good things about guilty plea discount for the system?
-Save money and resources
-Efficient crime control
What are the bad things about guilty plea discount for the defendant?
-Give up right to fair trial
-Plea under coercion could occur
-Race, gender and age disparities
What are the bad things about guilty plea discount for the victim?
-Defendants receive unduly lenient sentences
-Have no say over plea bargain deal
What are the bad things about guilty plea discount for the system?
-Compromises due process
-Adversarial trial loses it’s merit
Describe the details about Sentencing guidelines and Stepped Approach
-All judges/magistrates have an obligation to follow guidelines UNLESS ‘court is satisfied that it would be contrary to interests of justice to do so’
-Ensures fairness and consistency in sentencing, people who commit similar crimes in different areas receive same sentence
All offence specific guidelines adopt a stepped approach…
1: Evaluate harm and culpability
2: Finding starting point and category range
3: Consider aggravating and mitigating factors
4: Apply guilty plea discount
**Describe the sentencing trends in England and Wales
-Average custodial sentence length has increased by 37% in last 10 years for offences such as rape, assault, murder etc.
-This is longer than other European countries
-England and Wales = 20.4 months
-France = 10.9 months
-Germany = 8 months etc.
**How are criminal sentence changing in England and Wales?
-Severity has increased
-Ministry of Justice = Use of suspended sentence increased from 0.2% to 4.4% from 1999 to 2017
-Use of community order went from 10.8% to 7.9% over the same period
-Average custodial sentence length increased by 47%
**Why has sentences become more severe?
-Allen (2016).
-Due to intro of sentencing guidelines, they emphasis consistency and proportionality
-Penal populism
-Extension of mandatory and minimum life sentences
**How does this impact the CJS as a whole?
-Increase in prison populations
-Between 1993-2016, population in prison rose by 92.4% (MoJ, 2016) yet crime rates have declines over the same period
