#15626 - The Philosophy And Theories Of Punishment - Criminology

CSPS Supervision 5 – The Philosophy and Theories of Punishment

Easton and Piper – Determining ‘just deserts’

A retributivist sentencing framework?

‘The accepted account’

• Criminal Justice Act 1991 is viewed as the piece of legislation most infused with a just deserts approach. P70

  • Von Hirsch: the Act provided norms ‘aimed at helping to establish gradations of sentence for various crimes, based chiefly on offence-seriousness’.

  • Concept of bifurcated approach, whereby most offenders are sentenced on principles of just deserts and parsimony, while minority receive sentences for public protection longer than justified on retributivist principles, still underlines policy.

• Both CJA 1991 and CJA 2003 criticised for setting up unworkable hybrid sentencing frameworks.

• Characteristics of CJA 1991:

  • Presumptive rationale – just deserts – with a focus on a sentence proportionate to the seriousness of the offence in question.

  • Sentences to be treated as punishments which could be theorised in terms of deprivation of liberty.

  • Statutory hurdles for passing custodial and community sentences so that parsimony in sentencing could be encouraged.

• Introduction of statutory ‘seriousness’ thresholds as well as commensurability principle clearly flagged up principles of modern retributivism.

The Criminal Justice Act 2003

• Halliday Report in 2001 heavily criticised 1991 framework: P72

  • Sentencing framework has a ‘narrow sense of purpose’ and is ‘less than complete guide to the selection of the most suitable sentence in an individual case’.

  • Framework has too much discretion which has led to inconsistency of sentencing.

  • Framework has a ‘muddled approach to persistent offenders’.

• But the Report itself was criticised by Hudson (2001) and Barker and Clarkson (2002).

• Easton and Piper argue that, even after 2003, act is still basically retributivist.

• Calculation of seriousness and of a proportionate sentence still very important in current English sentencing law.

  • S.153(2) CJA 2003 states that not only should the sentence be proportionate to the level of seriousness, but it should also be ‘for the shortest term’ that is commensurate with seriousness.

  • Sentencers have a discretion to take account of mitigation or mental disorder and impose a non-custodial sentence even if the custody threshold is met. P73

• But there are arguably now aspects of the sentencing framework which are not as strongly retributivist as those introduced by CJA 1991.

A focus on custodial sentences

• The ‘standard’ custodial sentence is a determinate sentence – the judge specifies exactly how long it will be. P76

  • Assuming guidance is followed, length subject only to the maximum sentence set in law for each offence and the maximum allowed in a magistrates’ or youth court.

• A rejigged suspended custodial sentence introduced in CJA 2003 such that requirements can be placed on the offender, as in community sentences.

• One mandatory life sentence in English law, which is the sentence for an offender found guilty of murder. P77

Calculating seriousness

The approach of the guidelines

Format of Sentencing Council guidelines

• Approach of the offence0based guidelines since establishment of the Sentencing Council has been to outline a serious of ‘steps’ with a crucial first two steps.

  • Step 1 is to determine the offence category.

  • Step 2 is ‘shaping the provisional sentence’.

• If the offence in question could receive a non-custodial or a custodial sentence, at step 2, some guidelines have drawn attention to the statutory thresholds.

• Steps 1 and 2 usually allow a provisional sentence to be determined and the steps from 3 onwards include reductions for assisting the authorities and/or for a guilty plea, compensation and ancillary orders, the totality principles and consideration of remand time.

• Other guidelines have additional or substituted steps because of specific factors relevant to the offence.

Checklist

1. Is the offender mentally disordered? Consider provisions of Mental Health Act 1983 and any other relevant legislation. P79

2. Are any of the minimum sentences relevant? Is the sentence fixed by law (murder)? Are the sentences for public protection applicable?

3. Is the case to be dealt with in terms of proportionality/seriousness/just deserts? What statutory provisions are most relevant?

4. What is the statutory maximum penalty? If being dealt with in the magistrates’ court, what is the maximum that can be imposed?

5. Is there an offence-based guideline for this offence issued by the Sentencing Guidelines Council? If not, is there an appellate guidelines judgement?

6. What guidance is given on assessing relative levels of culpability and harm in calculating seriousness? Are there relevant general guidelines? Which factors from case law or guidance on mitigation or aggravation are relevant? Which statutory factors must be taken into account to aggravate (or mitigate) severity?

7. Can you now decide what is the ‘normal range’ or ‘starting point’ for sentencing this offence or subcategory of the offence?

8. Is there any recent guidance which is pertinent to deciding whether the facts of the case fulfil the seriousness criteria for imposing custodial or community penalties? Can you now fix a sentence before proceeding further?

9. For a community sentence: do ant facts of the case suggest particular requirements / penalties are appropriate?

   1. For a custodial sentence: is the sentence length as short as is necessary for the penal purpose?

10. Are there any personal mitigating factors? Should they be taken into account?

11. Is there a sentence discount for a guilty plea? If so, how much?

12. What compensation order should be imposed? If not, why not? What victim’s surcharge should be imposed? Is a confiscation order, or any other ancillary order, relevant

13. Given the answers from 9-12, what sentence should now be imposed?

14. Are there any other powers that should be exercised for the purpose of protection the public from harm from the offender?

Culpability and harm

• S.143(1) CJA 2003 have emphasised importance of focusing on the two elements comprising seriousness: culpability and harm. P80

• Involves the following questions:

  • What factors can legitimately make something more or less serious? Should previous offending be considered in this process?

  • How do you decide what sentence is proportionate to any amount of seriousness? In particular, where should the anchoring point be and so where, for example, should the custody level be set?

• Two types of judgement in assessing seriousness:

  • Normative judgement about wrongfulness.

    • Individuals have different ideas about what counts as most or least serious.

Culpability

• Cross (1981) suggested that four factors affect how the courts calculate seriousness as well as the factor of harm done: wickedness, social disapproval, social danger and social alarm. P81

  • The ‘evilness of the perpetrator – In our modern society, there may be little consensus as to what actions are most blameworthy and its focus on the mental state of the offender raises difficult questions as to intention, provocation, malice and excuses.

  • Social disapproval – Strength of public denunciation of an offence is often strongly influenced by the age or sex of the victim.

  • Social danger or social alarm – Clearest example of this factor might now be terrorist-related offences.

• In providing early guidance on ‘seriousness’, the SGC approached issue of culpability by focusing on the ‘amount’ of intention and identifying four ‘levels’ for sentencing purposes (2004, pa.1.7).

Harm

• Second element of gravity is the factual judgement on the amount of harm caused by the offending.

• Although this may seem like an objective judgement, the value to the victim may be ‘sentimental’.

• How do we reconcile different amounts of ‘wrongfulness’ and ‘damage’?

  • Although there is some consensus about the seriousness ranking of crimes, there appears to be less agreement about where the ‘anchor’ the penalty scale (Cavadino and Wiles 1994).

Aggravation of seriousness

• In all the recent guidelines lists are given of factors which can aggravate or mitigate the seriousness of the offending in question, and applying those factors is crucial. P83

Aggravating factors in statute

• Ashworth (2010) questions whether all the aggravating factors allowed by legislation and guidance can be theorised in relation to culpability or harm and so fitted into proportionality theory because ‘courts have often adopted the terminology of deterrence’.

• Statutory aggravations have become increasingly important in the past decade or so.

• S.143(2) CJA 2003 mandates aggravation for relevant previous convictions. P84

Offences committed on bail

• Amendments made by CJA 1993 increased seriousness if the offender had failed to respond to previous penalties and if the offence was committed while the offender was on bail.

• But CJA 2003 repealed this provision but re-enacted aggravation for offences on bail.

Racially motivated offences

• In 1998 the Crime and Disorder Act added motivation by racial hostility as a new statutory aggravation.

  • S.29-32 mandated an increase in offence seriousness for specified offences by increasing the statutory maximum, as well as imposing a duty to increase seriousness in relation to any other offences in s.82.

Religion, disability, sexual orientation and transgender identity

• Anti-Terrorism and Security Act 2001 amended the legislation to add ‘religiously aggravated offences’ into CJA 2003, s.145. P85

• S.146 added similar provisions to mandate an increase in sentences for aggravation related to disability...