Week 10 Flashcards
The psychology of sentencing
Sentencing:
The main aim of sentencing is to try to establish the best possible option for the offender, which takes into account community factors such as safety, the needs of the victim, and the needs of the convicted person. One of the main decisions is whether the offender will receive a custodial, semi-custodial (such as house arrest), or non-custodial sentence (such as probation).
The goals of sentencing:
There are five main goals to consider when passing sentence on an offender. Select each of the following titles to expand and explore each of these goals.
Individual Deterrence:
This punishment aims to stop the specific individual from engaging in the same offending behaviour in the future.
General Deterrance:
The goal of general deterrence is to stop others from engaging in similar offending behaviour.
Incapactitation:
The goal of incapacitation is to stop the specific individual from engaging in all offending behaviour by placing them in a secure environment.
Retribution:
This is where something of equal value is ‘taken’ from the offender.
Rehabilitation:
Here, the goal is to try and change the individual so they no longer wish to engage in offending behaviour.
Sentencing and psychological assessments: the underlying principles
A significant amount of forensic assessment revolves around assessments of risk, as well as assessments of elements specifically related to important forensic issues. Certain types of post-conviction assessments may be carried out for a number of reasons, including:
- Placement: this assessment may be done in order to establish the environment and type of service that best reflects the needs of society and those of the offender. An example of this assessment is the LSI (Level of Service Inventory).
- Dangerousness: here, the PCL-R (Psychopathy Checklist Revised) assessment might be used to establish how much of a danger the offender is to both himself and others.
- Competence to execute (US): this principle is based on the 8th-Amendment prohibition against cruel and unusual punishment.
Diversion/alternative sentencing programs
These programs are generally employed for offenders that are not considered to be dangerous to themselves or others, and take into account factors such as diversity and research on dealing with specific offences.
- Drug courts: these are courts for non-violent substance-abusing offenders (generally first offenders). The goal is to provide a forum in which everyone including law enforcement, the prosecutor, the judge, the defence and social services attempt to work together to provide the best possible post-conviction environment for the offender.
- Sentencing circles: these are generally provided for Indigenous offenders in Australia. The goal is to provide a community-based forum that works with the judiciary to create an effective sentence that will best ensure that the offender will not reoffend.
The two videos below explore drug courts and circle sentencing in more detail. Watch each of these videos considering the applications of these approaches as discussed above. Select the arrows to navigate between videos.
What is the goal of Individual Deterrence?
To stop the specific individual from engaging in the same behaviour in future.
What is the goal of General Deterrence?
To stop others from engaging in similar offending behaviour.
What is the goal of Incapacitation?
To stop the specific individual from engaging in the same behaviour by placing them in a secure environment.
What is the goal of Retribution?
Taking something of equal value from the offender.
What is the goal of Rehabilitation?
To try and change the individual so they no longer wish to engage in offending behaviour.
Read From diversion to reentry: Recidivism risks among graduates of an alternative to incarceration program (PDF 222 KB) (Links to an external site.) (Sung, 2011, pp. 219–234), as they describe a study which aimed to identify risk factors for reoffence among completers of the Drug Treatment Alternative to Prison in Brooklyn.
- Diversion as a criminal justice practice consists of the removal of prison-bound offenders from incarceration and the placement of diverted offenders in some kind of community-based supervision and/or treatment
- Contemporary diversion programs emerged in the 1970s
- Diversionary programs were made for juveniles and petty criminals to achieve crime reduction and minimizing re offending.
- Treatment Alternatives to Street Crime (TASC) - created partnerships between courts and human service organisations.
- programs are cost-saving success and crime reduction effectiveness
- Reentry is used in the literature to refer to a process of transition that every criminal offender released from incarceration has to undergo as well as the deliberate efforts to support a transition.
- Diverted offenders segregated in community-based treatment centers tend to be at the highest risk of drug-use relapse and criminal recidivism.
- research completed as there is a void in this research
Research Questions:
1. what were the risk factors for recidivism during re-entry
2. Did treatment and posttreatment variables better predict recidivism than fixed background variables.
Method:
329 felons who completed drug treatment alternative to prison between 1998 - 2004.
Final sample included 94 participants, 47 cases and 47 controls
Conclusion:
- 12 statistically significant correlates or precursors of posttreatment rearrest were detected in the sample of diverted offenders. 6 of these were grouped into 3 groups and could be dubbed as risk factors.
- if the treatment is too long, it suggests that there is a rejection of treatment and it takes the participants to be engaged to work.
- Lower recidivism - DTAP graduated with HIV or AIDs as they need to manage a life threatening disease and depend on a multilayer system.
- in contrast - past stab and gunshot wounds were correlated with rearrest - suggesting higher recidivism.
- hard to correlated gastrointestinal issues with high recidivism
- freedom from responsibilities = higher recidivismrecidivism
Read Chapter 6: Incarceration, deterrence and rehabilitation: Flawed ideals or appropriate sentencing goals? (Links to an external site.) (Bageric, 2001, pp. 127–159), to learn more about the goals of sentencing.
Incapacitation:
- involves rendering an offender incapable of committing further offences
- probation, licence cancellation orders and community work limit re-offending
- while in prision - people can re-offend, damage property, assault.
The relevance of incapacitation to sentencing law and practice:
- relevant to sentencing where there is a significant risk of recidivism
- AUS, 1988 - 1998, grew from 12k to 20k, increase of 80%, VIC 79 per 100k, NT 476 per 100k
Community Protection:
- incapacitation increases happiness
- other things can lead to recidivism - brutality in jail
- Brennan J in Channon - the necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes. Criminal sanctions are purposive and they are not inflicted judicially except for the purpose of protecting society, nor to an extent beyond what is necessary to achieve that purpose.
- likelihood that an offender would have offended during the term of imprisonment if they were in the community.
- possible corrupting effect of prison, to the extend it increases the propensity of prisoners to commit offences when released.
The corrupting effect of prison:
- provides an opportunity to learn more criminal skills, there is no evidence that offenders who have been incarcerated have a higher rate of recidivism.
ID of offenders likely to re-offend:
- those who have already convicted of offenses and who it is suspected and mat re-offend.
- those who have not committed an offense but are nevertheless suspected of being dangerous.
False Positives:
- someone who has committed a crime will re-offend
- studies show people are less likely to re-offend within 2 years
- re-offenders are usually less serious crimes
General Incapacitation:
- involves imprisoning large numbers of offenders simply on the basis that they have committed a criminal offense
- no effort is made to predict future offending patterns
3 strikes law and crime rates:
- California - 3 strikes - mandatory long jail terms on repeat offenders and has now causes greater incarceration.
- double the term they received originally.
- this would result in a reduction on crime
- no evidence of this.
Other factors relating to incapacitation:
- there are a finite number of potential criminals and that the level of crime can simply be reduced by lowering the number of criminals in circulation at any given time.
- high incarceration = no decline in criminality.
The problem of persistent minor offenders:
- UK 87% change of being convicted in another 6 years
- AU - 2 thirds of sentenced offenders received into prison have already served a sentence in prison
- 1 approach is to impose increasingly longer periods of imprisonment for each offense.
- Hindle - a court can do little more than treat a person of this nature as a public nuisance and remove him from circulation so that he ceases to prey upon his fellow citizens as long as is reasonably possible.
- can be predicted a high degree of confidence that such offenders will continue to cause a nuisance to the community.
Incapacitation and sense of safety:
- rendering known offenders incapable of re-offending increases that communities sense of safety and security.
- accordingly, there would seem to be much merit in the view that the best way to deal with the perception of rising crime may be to simply advise the community to turn off the tb.
Summary:
- incapacitation aims to protect the community
- benefits - derived from incapacitating large numbers of possible offenders are likely to be more that offset by the harm in imprisoning offenders who in fact would not have offended.
Deterrence
- specific deterrence aims to discourage crime by punishing offenders for their transgressions and there by convincing them that crime does not pay.
- general deterrence seeks to dissuade potential offenders, by the threat of anticipated punishment, from engaging in unlawful conduct by illustrating the unsavory consequences of offending.
The relevance of deterrence to sentencing law and practice:
- endorsed as the paramount objective and sentencing
- Radich - in all civilised countries, in all ages, deterrence has been the main purpose of punishment and still continues so.
- general deterrence has been held to be particularly important where the offence is prevalent, public safety is at issue, the offence is hard to detect, or involves a breach of trust, where vulnerable groups need protection.
- specific deterrence is a weighty consideration for offenders with significant prior convictions, since it is assumed previous sanctions have failed to stop their offending behaviour
The importance placed by the courts on general deterrence:
- GA is not specifically mentioned as one of the relevant sentencing factors states in the Crimes Act 1914.
- Australian Law Reform Commission that it not be adopted as an objective of sentencing on the basis that sentences should be commensurate with the seriousness of the offence committed.
- El Harhani - the fundamental prinicples of sentencing, inherited from the ages
- it is stated that it is still an important sentencing consideration and no less important than the other factors expressly mentioned, although it is absent from the detailed list of relevant sentencing criteria
- criticisms - it doesn’t work, it has been contended that it is repugnant that a person should be sacrificed for the benefit of others.
Legal Approach to the Claim that deterrence does not work:
- punishment involves pain - deterrence cannot be justified unless there is an ascertainable benefit to the community.
- Yardley v Betts - the courts must assume, although evidence is wanting that the sentences which they impose have the effect of deterring at least some people from committing crime.
- Fern - courts are obligated to assume that the punishments which parliament authorises will have a tendency to deter people from committing crimes. The administration of criminal justice is based upon that assumption.
- Common sense indicated that we normally act in a prudential manner and seek to avoid undesirable consequences.
The effectiveness of special deterrence:
- offenders may not re-offend for numerous reasons apart from more time in jail.
- may have been a one off, opportunity may not present itself again, offender may get a job or grow up
- no evidence
- study shows re-conviction rates for imprisonment were lower than for suspended sentences.
The effectiveness of general deterrence:
- marginal deterrence concerns whether there is a direct correlation between severity of the sanction and the prevalence of an offence
- absolute deterrence relates to the threshold question of whether there is any connection between criminal sanctions and criminal conduct.
The failure of GD:
- freeze all other variables which may affect crime rates while increasing penalty rates - not possible
- US - lower sanctions and higher crime rates - another cause
- Overall Panel concluded that the research evidence that does exist regarding marginal deterrence is.
- Vein - show rather clearly that the level of punishment is not the major reason why crime rates vary.
- postulated that an escalation in penalty level resulted in an increase in offending behaviour
- there is no verifiable link between such measures and drop in crime
- women in disadvantage groups whos kids would have been more likely to commit crimes as adults, choosing abortion after it was legalised in 1970s.
- planned offences - robbers are less frequently resorting to guns as gun charges hold extra time
The success of absolute GD:
- natural social experiments where there has been a drastic reduction in the likelihood for criminal behaviour
- says it doesnt work, because it only addresses those who do not need it, that is law abiding citizens
Other factors relevant to deterrence:
- Canadian Sentencing Commission - the old principle that is more the certainty than the severity of punishment which is likely to produce a deterrent effect has not been invalidated by empirical research
Moral Values underlying law:
- values underpinning the law
- people do not merely obey the law because it is in their self-interest to do so but also because they believe it is proper to do so.
- thus, the perception of a legitimate police force makes it more likely that laws will be observed.
Theoretical Objections:
- criticisms - imposition of harsher, exemplary, sentences in order to deter others from committing similar offences
- punishing the innocent does not insurmountably trouble our sensibilities and is no worse than other practices which we as a society condone.
- exemplary punishment is far less repugnant than punishment of the innocent because we are dealing with actual wrongdoers who have at least to some extent contribute to their plight.
- effectively be placing the interests of wrongdoers above those innocent members of the community.
- there is a limit o the level of disproportionality that will be tolerated by a utilitarian.
Deterrence cannot set penalties:
- ashworth argues that another problem with deterrence is that we lack sufficient empirical knowledge on whichto base the calculation of penalties.
Conclusion:
- deterrence does work, at least to the extent that if there was not a real threat of punishment for engaging in the unlawful conduct, the crime rate would soar.
Know and understand the goals of sentencing
The goals of sentencing:
There are five main goals to consider when passing sentence on an offender. Select each of the following titles to expand and explore each of these goals.
Individual Deterrence:
This punishment aims to stop the specific individual from engaging in the same offending behaviour in the future.
- specific deterrence aims to discourage crime by punishing offenders for their transgressions and there by convincing them that crime does not pay.
- specific deterrence is a weighty consideration for offenders with significant prior convictions, since it is assumed previous sanctions have failed to stop their offending behaviour
Deterrence cannot set penalties:
- ashworth argues that another problem with deterrence is that we lack sufficient empirical knowledge on whichto base the calculation of penalties.
General Deterrance:
The goal of general deterrence is to stop others from engaging in similar offending behaviour.
- general deterrence seeks to dissuade potential offenders, by the threat of anticipated punishment, from engaging in unlawful conduct by illustrating the unsavory consequences of offending.
The relevance of deterrence to sentencing law and practice:
- endorsed as the paramount objective and sentencing
- Radich - in all civilised countries, in all ages, deterrence has been the main purpose of punishment and still continues so.
- general deterrence has been held to be particularly important where the offence is prevalent, public safety is at issue, the offence is hard to detect, or involves a breach of trust, where vulnerable groups need protection.
Deterrence cannot set penalties:
- ashworth argues that another problem with deterrence is that we lack sufficient empirical knowledge on whichto base the calculation of penalties.
Incapactitation:
The goal of incapacitation is to stop the specific individual from engaging in all offending behaviour by placing them in a secure environment.
Summary:
- incapacitation aims to protect the community
- benefits - derived from incapacitating large numbers of possible offenders are likely to be more that offset by the harm in imprisoning offenders who in fact would not have offended.
Retribution:
This is where something of equal value is ‘taken’ from the offender.
Rehabilitation:
Here, the goal is to try and change the individual so they no longer wish to engage in offending behaviour.
What alternatives are there to imprisonment?
- Drug courts: these are courts for non-violent substance-abusing offenders (generally first offenders). The goal is to provide a forum in which everyone including law enforcement, the prosecutor, the judge, the defence and social services attempt to work together to provide the best possible post-conviction environment for the offender.
- Sentencing circles: these are generally provided for Indigenous offenders in Australia. The goal is to provide a community-based forum that works with the judiciary to create an effective sentence that will best ensure that the offender will not reoffend.
What is the goal of Individual Deterrence?
To stop the specific individual from engaging in the same behaviour in future.
What is the goal of General Deterrence?
To stop others from engaging in similar offending behaviour.
