Setencing Theories Flashcards
When sentencing what must the mags/ judges consider?
What they are trying to achieve as well as ensuring it is mindful of the D;s human rights
regarding Adult offending what does S.57 Sentecing Act 2020 state?
“THe court msut have regard to the following purpsoes of sentecing-
(a) the punshiment of offenders
(b) the reduction of crime (including by deterrence)
(c) the reform and rehabilitation
(d) the protection of the public and
(e) the making of reparations by offenders to persons affected by their offences”
Regarding Youth sentecing what must the courts have regard to?
S.57 sentencing Act and S.58 Sentecing Act which provides that the courts must have regard to
-preventing the reoffending and the
-welfare of the young person
What are the 6 theories derived from S.57 and S.58 of the Sentecing Act 2020?
1) Retribution (Offenders have to be punished)
2) Deterrence (Dettering an individual or the wider public using sentences to make an example of the D
3) Denunciation (Making society disprove of D’s behaviour)
4) Incapacitation (Phyiscally stopping the offender from re-offending)
5) Reform and Rehabilitation (Targeting the reasons for the offending)
6) Reparation (Getting D to make amends for the harm caused)
What is retribution?
Rests on the notion that if a person has done wrong, they deserve to be punished
-does not seek to reduce crime or alter an offenders behaviour and so is not particulary “forward thinking”
-It is taking adequate proportionate revenge on behalf of V and society (and therefore also incorporates an element of denunciation
What did Lord Denning state that is line with the theory of Retribution?
“Punishment is the way in which society expresses its denunciation of wrongdoing…… the truth is that some crimes are so outrageous that society insists on adequte punishment, becuase the wrongdoer deserves it”
How is retribution commonly expressed in plain english?
an eye for an eye etc
State a sentence that supports the thoery of Retribution
Whole life tariffs attached to murder under the (Murder(Abolition of the Death Penalty) Act 1965
-currently there are 70 people serving a whole lfie tariff including Lucy Letby
What did Lord Steyn state in the case of Hindley?
“there are cases where the crimes are so wicked that even if a prisoner is detained until he or she dies it will not exhaust the requirement of retribution”
State the advatages of Retribution
Victim/ Society gains closure
Helps to protect the public
Achieves deterrence and denunciation
state the disadvatages of retribution
-can be expensive e.g whole life tariffs in prison
-Does not try to prevent future crimes necessarily, or reform D as it does not tackle the reason for the behaviour in the first place
- Hypocritical
What is deterrene?
this theory views crime as a type of harm which should be eradicated
-using sentences to deter can prevent the commission of future crimes by D and other people
What is an individual deterrent?
This is punishing the individual offender in the expectation that they will not offend again
What is the general deterrence?
This shows people what is likely to happen to then if they commit a similar crime. Though this can only really be effective if a particular crime is prevalent
How does the court deter an individual?
An increasingly serve penalty will be imposed and an offender will be warned about what could ahppen if they re-offend agian. HOWEVER, around 55% of adult offenders and 70% of young offenders will re-offend within 2 years
How does the court deter society?
A general deterrent sentence will typically be higher then the going rate as the courts will make an example of the offender because the offence had become prevalent in that area, This can be disproportionate to the actual offender but justified becuase of the strong message that needs to be sent out
What happened in the case of Healey?
D sentenced to 4 years for stealing a mobile phone. Judge said she regarded street robbery as so serious to warrant an immediate custodial sentence. “The sentence i pass… is a deterrent to show that this type of offence will not be tolerated”
What happened in the case of Woollard?
Student threw a fire extinguisher off the roof of the Conservative Party’s headquaters in london during a student protest. He was senteced to 2 years and 8 moths.
What do critics of deterrent senteces point out?
“exemplary sentences” are particularly unfair on the D as the rule of law (AV Dicey) and the interest of justice demands cases and defendents are treated alike (equality before the law)
What balances the critics concerned by deterrent sentences?
External supporting evidence of prevalence must exist to justify treating the offender more seriosuly then usual
What happened in the case of Oosthuizen?
Lack of evidence of prevalence of street robbery meant the trial judge was not entitled to inpose a sentence than otherwise would be appropriate
What was stated in the White Paper “Crime, Justice, and Protecting the Public 1990”?
“Detternce is a principle with much immediate appeal… but much crime is committed on impulse…. it is unrealisitc to construct sentecing arrangements on the assumption that most offenders willl weigh up the possibilities in advance”
Regarding Detterance, what was introdcued in August 2023?
The gov announced a proposal to force D to attend their sentencing hearing or have 2 years added to their sentece (this only applies to cases where the max sentece id life imprisonment)
State the advatages to deterrance
-sends a clear message about criminal behaviour, so people think twice
State the disadvatages of deterrents
-Deterrents will not affect those who though they would not get caught
-rule of law issue, there should be equality before the law yet offenders are treated differently with some being punished due to prevalence and not necessarily to what they have done
What is denunciation?
Societies disapproval of the offenders criminal behaviour. The sentence sends a message to both D and public i.e society condemns their behaviour and justice is seen to be done. It marks the boundaries of morally acceptable conduct, showing where society has become less tolerant of certain offences
-media is often the tool used to help express societal views
e.g News of the World “name and shame” campaign following the death of Sarah Payne, this led to the introduction of “Sarah’s law” which allowed controlled access to the sex offenders list
-Public demand lead to new offences being introduced including Revenge Porn (s.33 Criminal Justice and Courts Act 2015) punishable up to 2 years imprisonment
What are the disadvantages of Denunciation?
Revenge porn was not retrospective so has not met the demands of everyone
Media frenzy can lead to wrong message being sent around
-Media could be bias
What are the advantages of Denunciation?
-reflects societal views, government is more likely to gain the respect of the public
-justice could be achieved
-can trigger developments/ changes in the law
-the publication may make the D change their ways
What is incapacitation?
Making an offender physically incapable of re-offending. the public is therefore protected. The most obvious example is the death penalty, however since the Murder(Abolition of the Death Penalty) Act 1965 the best method is prison
By placing an offender in custody, an offender is physically prevent from committing further offences against the public
Home secretary Michael Howard was a grant believer in “prison works”
Other sentences that incapacitate include
- Dangerous drivers being disqualified
-Exclusion orders
-curfews
between December 2022-December 2023 how many prisoner assaults were there per 1,000 prisoners?
211 prisoner on prisoner assaults per 1,000
State the advantages of Incapacitation
Physically puts a stop to the problem
Brings down crime figures
Protects the public
State the disadvantages of Incapacitation
Prison is expensive £48,000 per prisoner
Could be counter productive (new ideas and techniques can be learned)
Reconviction rates high (adults=55%, Youth =70% re-offend in 2 years)
Self-harm high in prisons
What is reform and rehabilitation?
A reformed offender is less likely to reoffend
Helps them see the error in their ways, with the intention to bring the offender back into society
For Instance a community order is a forward looking aim which is particularly important to the philosophy to sentencing young offenders
-Judges and magistrates will use “pre-sentence” reports to help guide their sentence
HOWEVER this does make the assumption that there is something wrong with the V which needs fixing as well as the assumption based on a persons social-economic status
-A 2013 paper “Transforming Rehabilitation” quoted an estimated cost of between £9.5 billion and £13 billion
What is the Rehabilitation of Offenders Act 1974?
Allows an offence to be considered “spent” after several years in prison
e.g Custodial sentences of 1 year or less
adults 1 year from the date of the sentence =spent
Youth 6 months from the date of the sentence =spent
What are the advantages of rehabilitation?
very forward thinking
Help to reduce re-offending
Particular successful for first offenders
Encourages people to get their life on track
What are the disadvantages of rehabilitation?
Assumes there is something “wrong” that needs to be “fixed”
expensive
offenders need to want the reform
Public often left dissatisfied as it is seen as a soft type of sentence
what are reparations?
This is about “restorative justice” aimed at compensating V, usually be ordered the offender to pay a sum of money
Some projects aim to bring D and v together, by giving the V to tell the D how they have been affected and get an apology. According to studies violent criminals are less likely to commit further offences, Vs symptoms of post-traumatic stress order are reduced and restorative measures also tend tend to be cheaper
-reparations can also be towards society in the form of community orders
What are the disadvantages of reparation?
Requires worthwhile participation from both parties, like reform and rehabilitation, the change must come from within
Needs to have realistic expectations
1/5 report a negative experience
What are the advantages of reparations?
Helps D and V get closure
cheaper then other methods
Forward thinking
27% fewer crimes committed by offenders who have experienced a restorative justice programme
