#15628 - Community Penalties - Criminology

CSPS Supervision 6 – Community Penalties

Easton & Piper – Punishment and rehabilitation in the community

Introduction

‘Community’

• The word ‘community’ emerged in the 1980s and 1990s in penal policy documents. P330

  • ‘It became one of the most promiscuous words in contemporary political usage’ (Worrall 1997) and an ‘all-pervasive rhetoric’ (Garland 2001).

• Idea of punishment by the community has become increasingly important. P331

  • Recently, policy documents have paved the way for the 21 ‘community rehabilitation companies’ which became private companies delivering community programmes for offenders in February 2015.

  • ‘Community’ appears to be the place where the providers of offender rehabilitation operate but also reflects the fact that those providers are now part of the community which provides, punishes and rehabilitates.

• Focus on community may be linked to a policy imperative of increasing the perceived legitimacy of the criminal justice system.

  • For some, the trend to localism, privatisation and involvement by charitable bodies in community punishment signified an increase in social control via society’s informal networks (Brownlee 1998, Cohen 1985, Garland 1985 and Kemshall 2002).

Is prison the only ‘real punishment’?

• Recent developments can be seen as contributing to a reduced reliance on custodial punishment. P332

  • Includes changes in relation to fines, policy developments associates with the ‘rehabilitation revolution’ and the greater availability of the suspended sentence.

  • Rehabilitation revolution and privatisation of the greater part of the work of the National Probation Service aims to make rehabilitation more effective and consequently, community penalties and release on licence more ‘legitimate’ a punishment in the eyes of the public and sentences.

• Use of both custodial and community sentences increased in the period 1995-2006 (Tarling 2006) and proportion of community sentences remained stable in 2007-2010 (Ministry of Justice 2011).

  • Statistics from 2011 onwards suggest the increased use of community sentences has stalled and has recently been reversed (Ministry of Justice 2015).

    • 16.7% decrease in percentage of offenders given a community sentence in the year ending September 2014.

    • Statistics for community sentences as a proportion of all those sentenced show a reduction from 12.7% to 9.3% from 2012-2014.

  • Possible that restriction on the use of community orders such that only those convicted of imprisonable offences can be subject to such an order may have restricted their use.

  • Would seem that community sentences have not yet ‘taken off’ as an alternative to custody.

Fines

Fines as punishment

• Fines might appear to be the easiest and most appropriate punishment to fix proportionately. P335

• Several issues

  • Issue of inequality of impact is more visible than in relation to other penalties – problematic categories of offenders in applying fines, notably the very poor and very rich.

  • There are issues relating to legitimacy and enforcement.

  • There are financial sanctions that are not within the purview of the court system.

• Fine can be added to other penalties (CJA 2003, s.163) and can be imposed in magistrates’ and Crown Courts.

  • No maximum fine in Crown Court but maximum for summary offence in magistrates’ has been 5000 since 2002.

  • S.85 LASPO has removed 5000 maximum.

• In 1995, 75% of all those dealt with by courts were fined (Brownlee 1998).

  • Dropped to 69% by 2002 and 65.5% by 2010 (Ministry of Justice 2011).

• In Crown Court, use of financial penalties has decreased more dramatically – by 46% over 1995-2006 (Carter 2007).

• Use of fines for indictable offences generally decreased from 27% in 1999 to 17% in 2009. P336

• Recent statistics suggest that long-term overall decrease has not only slowed down but that, for 2013/14, fines increased by 1.6% as a proportion of all those sentenced.

  • 2013/14 fines issued for 86% of summary offences and 19% for indictable offences.

Legitimacy

• Young (1989) argued that fluctuations in use due to changes in ideas about whether a fine is a suitable means of punishing an offender and whether it is perceived as ‘really’ a punishment or not.

• One cause of ambivalence over fines is that it is the designated penalty for those categories of offence which some sections of the population do not regard as ‘really’ criminal.

  • Where citizens do not regard an offence as really criminal, they do not perceive the outcome as a punishment but rationalise it instead as a tax.

  • Such thinking influences the conceptualisation of financial penalties for ‘real’ crimes.

• Strong popular feelings that there are particular harms not compensatable by a financial penalty.

• In relation to property offences, there is the added difficulty that ‘the value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the crime’.

Units of financial deprivation

• The amount of deprivation or loss is affected by how much disposable income the individual retains, or how much impact the fine has on the person’s financial circumstances. P337

• Two approaches possible for correlating seriousness with an amount of money:

  • Have a fixed fine for each amount of seriousness.

  • Have a unit of financial deprivation correlated with each unit of seriousness.

Day fines

• Approach of English sentencing law and practice until 1991 was to use a fixed amount of fine which could be reduced by the court if the offender was unable to pay.

• Day fines use what offender earns in a day as the basis for assessments of the total fine.

• In England such a scheme was successfully piloted and implemented across country for magistrates’ courts by means of s.18 Criminal Justice Act 1991.

• New s.18 inserted by s.65 Criminal Justice Act 1993.

  • Legal framework is now in s.162-165 CJA 2003.

  • Effectively returned situation to what it had been before 1991, except that court could raise as well as lower the amount of the fine taking the offender’s means into account.

  • Research suggests that magistrates returned to imposing lower than proportionate to impact fines on the employed.

• Management of Offenders and Sentencing Bill 2005 proposed to amend s.164 CJA 2003 so that fines would be fixed by reference to daily disposable income, but the Bill feel when Parliament was prorogued for the General Election.

Changing thinking

• Guidance for use by magistrates is now much more impact-focused.

• Current approach is to place the offending in question within a band, then financial liability is fixed according to the individual’s means.

• There will need to be further training of those who impose the majority of fines. P339

Increased fines for corporate crime

• Guidelines in Corporate Manslaughter and Corporate Homicide Act 2007 state that for corporate manslaughter the appropriate fine will seldom be less than 500k.

Default and enforcement

• Fines become payable as soon as imposed but guidance has established that payment can be by instalments. P340

  • These should not normally be spread over more than 12 months.

• Many offenders do not pay any or all of their fine.

  • Full payment rate for fines was only 55% in 2002/3 but through until 2010/11, there is an overall though not steady improvement in rate of payment.

• There has also been a gradual increase in full payment of FPNs in England and Wales, form 77% in 1997 to 87% in 2003 (Ministry f Justice 2007).

Default

• Home Office research in the mid 1990s found that there was no one standard practice by which fines were enforced.

• Main reasons defaulters gave for their fine arrears were that there had been a detrimental change in their financial circumstances since the fine was imposed and that they had other financial commitments and debts.

• Report of the Select Committee on Public Accounts (2002) found that, of 397m fines imposed in 2001/2, around 59% collected, but 58m written off (largely because the offender could not be traced) and 90m cancelled because of successful appeals or a significant change of circumstances.

• Until early 1990s immediate or suspended prison sentences were the main response to fine default, but reliance on this sanction then decreased.

  • Research found that magistrates acknowledged that fines were likely to impact disproportionately on offenders with limited means and that fines now often ‘seemed like the imposition of debt rather than punishment’ (Mackie 2003).

• Crime (Sentences) Act 1997 extended the availability of non-custodial penalties for fine default and s.300 CJA 2003 empowers magistrates to impose a ‘default order’ whereby the offender must comply with an unpaid work, curfew or attendance centre requirement. P342

Enforcement

• Courts Act 2003 amended parts of previous legislation to provide a new framework for fine enforcement and a Unified Courts Agency was created in 2005, with a phased implementation of a new National Enforcement Service from April 2007.

• Even research evidence that people pay fines at the last minute – when threatened with an imminent custodial order – does not prove they could have paid all along.

• Developments since 2003 in relation to imposition of unpaid work might be ameliorating the situation.

  • Courts Act 2003, s.97 and Schedule 6, effective from 2004, made provision for people to work off the outstanding financial penalty by undertaking unpaid work.

  • S.300 CJA 2003 empowers the court to impose an unpaid work requirement on a fine defaulter by means of a default order instead of issuing a warrant for commitment to prison.

Fixed and regulatory penalties

• There are...