A more recent version of these Community Penalties notes – written by Oxford students – is available here.
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Community Penalties Chapter 12: 'Just Punishment In The Community' in 'Sentencing and Punishment: The Quest for Justice.' Easton and Piper (2012) Punishment in the community concerns offenders who have been sentenced to a community or suspended sentence order, or who have served the custodial part of a prison sentence and have been released to Probation Service supervision. Policy trend has been away from short prison sentences (lack of rehabilitation programmes, little deterrent effect) towards more use of community penalties and SSOs.
Supervision and custodial penalties Offenders given a suspended custodial sentence or on release from a custodial sentence are important 'clients' for the PS. In latest figures, over 90,000 offenders were being supervised as part of SSO's (suspended sentence order) compared with 120,000 on community orders. For prisoners serving a year or longer in prison, the second part of a custodial sentence is spent under the supervision of the PS in the community. CJA 2003 enacted Halliday Report (2001) proposal to release prisoners to PS supervision automatically at the halfway stage of the sentence - s.244. Raynor and Vanstone (2007) - 'the boundary between custodial and community sentences is becoming more fluid' reflecting the policy trend. They go on to say that it is essential that there's more effective collaboration between the Prison and Probation Services. This was achieved in form at least in 2004 - the Prison and Probation Services became part of the National Offender Management Service (NOMS). NOMS has the dual aims of punishing offenders and reducing offending.
The development of community penalties Halliday Report asked for 'more flexible and effective community sentences' which give courts 'a menu of options to choose from, providing elements of punishment, crime reduction and reparation, to fit both the offender and the offence'. CJA did this by replacing the existing orders with a single community order and providing (s.177) the range of specified requirements which courts can impose. Community penalties are of relatively recent origin. Perhaps this is why there are misconceptions - the 1990 White Paper noted 'there seems to be an assumption that custody is the only "real" punishment'. The CJA 2003 was passed with plans to revitalise community punishment - non-custodial penalties should stand in their own right, not simply being seen as inadequate alternatives to custody - hence 'just deserts' plays a role in community punishment.
Garland (2001) calls 'community' an 'all-pervasive rhetoric' in policy discourse. It can be found in policy documents of the 80s and 90s in regard not only to criminal justice but also care of the old and those with mental health issues. Enhancing and strengthening 'community' is a taken-for-granted good - applications for many types of project funding must show the potential benefit to the community. Nelken (1994) proposed 3 distinct relationships between the 'community' and 'punishment': The community as a site - the location of the intervention is somewhere other than an institution - so punishment in the community means punishment imposed elsewhere than prison The community as agent - punishment by the community - in 1990 'Supervision and Punishment in the community' devoted a chapter arguing for the greater involvement of the
independent sector, particularly for partnership with the voluntary sector to 'involve the community at large much more in work with offenders'. The community as beneficiary - punishment in the community became important symbolically as punishment FOR (the benefit of) the community - hence the 'visible unpaid work initiative' rolled out across England and Wales since 2005. The idea is that the community can SEE the payback to the community by offenders - at the end of 2008, 10,000 orange vests with 'Community Payback' written on the back were distributed to aid such visibility.
The legal framework Just as with custodial sentences, a statutory hurdle was enacted for community sentences - s.148 CJA 2003 - a court may pass a community sentence only if it is of the opinion 'that the offence, or the combination of the offence and one or more offences associated with it' is 'serious enough to warrant such a sentence'. This hurdle is imposed because of the concepts of seriousness and restrictions to liberty - the seriousness of the sentence (and the corresponding restrictions to liberty) should be justified by the offence - just deserts.
The CJA 2003 Meant to herald a more utilitarian approach to community sentences - a new single community punishment order to have 'ingredients' specified by the court. The 'ingredients' would be chosen from compulsory programmes aimed at changing offending behaviour, compulsory work, restrictions and requirements like curfew, electronic monitoring, reparation and supervision to support resettlement and enforce the sentence. S.166(2) allows the court to pass a community sentence even if the seriousness criterion for custody has been met. s.177 of the CJA is where we find the community punishment. There is only one community order, but 12 requirements. The Community Order's 12 Requirements
? Unpaid work - between 40 and 300 hours, to be completed in 12 months. Each year probation staff in the Thames Valley will supervise some 300,000 hours of unpaid work by offenders in local communities, to ensure that they meet the requirements of their Community Order/Unpaid Work Requirement.
? Specified activities - this could consist of packages of work on Basic Skills, Employment, Training and Education or include specialist activities, such as Restorative Justice (with the purpose of reparation) or Back on Track, which is for offenders not complying with their order and is an alternative to breach). The aggregate number of days specified for the activity can be up to 60.
? Programmes aimed at changing offending behaviour - these are Ministry of Justice accredited programmes designed to address the attitudes and patterns of behaviour that contribute to offending, such as programmes for sex offenders, domestic violence perpetrators or those who misuse drugs.
? Prohibition from certain activities - the offender must refrain from participating in activities on a specified day or days or during a period.
? Curfew (usually with electronic monitoring) - the offender must remain for certain periods at a specified place; the order may last for up to six months and may be for up to 12 hours a day.
? Exclusion (usually with electronic monitoring) from certain areas - the offender may not enter a specified place for a period up to two years.
? Residence Requirement - the offender must reside at the place specified.
? Mental Health Treatment - the court must be satisfied that the mental condition of the offender is such as requires and may be susceptible to treatment. This Requirement can only be given with the consent of the offender.
??Drug Rehabilitation - the offender is required to have treatment to reduce or eliminate his/her dependency on or propensity to misuse drugs and provide samples for testing whether or not s/he has any drug in his/her body. This Requirement can only be given with the consent of the offender. Alcohol Treatment - the offender is required to attend treatment to reduce or eliminate dependency on alcohol. This Requirement can only be given with the consent of the offender. Supervision Requirement - requires the offender to attend additional appointments with Thames Valley Probation. The purpose of supervision is support the work undertaken through other Requirements. Attendance Centre Requirement (for under 25s) - the offender must attend at an attendance centre for between 12 and 36 hours. There are two attendance centres in Thames Valley - one in Reading and the other in Bicester. This is about keeping an eye on them.
Requirement that there must be a punitive element in community punishments introduced in the Crime and Courts Act 2013. Potentially a nod to the popular punitiveness. There might also be a useful deterrence element - the consequences of breach. The public protection aim might be satisfied by community punishment in the long term.
Choosing the community punishment A Probation Circular in 2005 provided guidance on the implementation and use of the new community order, incl a table which gives detailed suggestions. Mair et al (2007) point out that sentencers, esp magistrates, tend to believe that more requirements are better - could lead to 'requirement overload'. They also found that the unpaid work requirement was becoming increasingly popular - half of the available requirements are very rarely imposed. Mair and Mills (2009) - considered the extent to which community orders have had the hoped-for impact on providing an alternative to short-term custodial sentences. They noted a great increase in the use of SSOs and summarised the trends: there is a slight growth in the number of single-requirement orders; half the requirements available are rarely used; the Community Order greatly resembles the community sentences that preceded it; the breach rate for both orders is around 40%; there is little evidence to suggest that either order is acting as an alternative to custodial sentences of 12 months or less. This is quite pessimistic. They have not been sufficient to make such penalties more attractive to sentencers and the public; it was hoped that they would become alternatives to custody rather than alternatives to fines. The requirements that are used most often differ across the country. There are massive localised variations because of the fact that probation trusts re independent.
Enforcement and compliance There's been a shift from 'enforcement' to 'compliance' - may be more than just a change in words - may signify better relationships between offenders and their managers. 40% breach rate (for community orders) is a very high figure - it would be interesting to know how much of this is deemed 'reasonable'. Schedule 8 of the CJA 2003 gives a statutory warning s.5(1) that offenders get only one warning before a return to court in any 12 month period. What constitutes a breach is discretionary on the probation officer - the statutory wording is failure to comply without reasonable excuse. If a breach is proved after a warning is given, positive steps must be taken. The court is not obliged to impose custody, it can impose 'more onerous' requirements to the order instead. The final option would be to revoke and resentence.
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