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CSPS Supervision 6 - Community Penalties Easton & Piper - Punishment and rehabilitation in the community
? The word 'community' emerged in the 1980s and 1990s in penal policy documents. P330 o 'It became one of the most promiscuous words in contemporary political usage' (Worrall 1997) and an 'allpervasive rhetoric' (Garland 2001).
? Idea of punishment by the community has become increasingly important. P331 o 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. o '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. o 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 o Includes changes in relation to fines, policy developments associates with the 'rehabilitation revolution' and the greater availability of the suspended sentence. o 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). o 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 o 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. o There are issues relating to legitimacy and enforcement. o 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. o No maximum fine in Crown Court but maximum for summary offence in magistrates' has been PS5000 since 2002. o S.85 LASPO has removed PS5000 maximum.
? In 1995, 75% of all those dealt with by courts were fined (Brownlee 1998). o 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. o 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. o 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. o 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: o Have a fixed fine for each amount of seriousness. o 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. o Legal framework is now in s.162-165 CJA 2003. o 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. o 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 PS500k. Default and enforcement
? Fines become payable as soon as imposed but guidance has established that payment can be by instalments. P340 o These should not normally be spread over more than 12 months.
? Many offenders do not pay any or all of their fine. o 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 PS397m fines imposed in 2001/2, around 59% collected, but
PS58m written off (largely because the offender could not be traced) and PS90m 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. o 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 noncustodial 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. o 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. o 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 also penalties and sanctions which are imposed out of court and also outside the justice system, in that they are collected by a variety of bodies. These are usually for fixed amounts. P343
? These have been described as a compromise between the principle of equal impact and administrative efficiency (Ashworth 2000).
? O'Malley (2010) criticises this trend as depersonalising the individual and as showing a trend to the monetisation of justice and the development of risk-based technologies of governance.
? Fixed Penalty Notices (FPN) first introduced in 1950s for parking offences and now extended to wide range of offences.
There are also penalty notices for disorder (PND) - an on the spot fine introduced by s.1-11 Criminal Justice and Police Act 2001 and implemented across England and Wales by April 2004. o In 2010, far greater numbers of people received PNDs for drunk and disorderly behaviour and for behaviour likely to cause harassment, alarm or distress than were proceeded against at the magistrates' court (Grace 2014).
? In relation to fixed penalties, the difficulty is the setting of the financial amount. P345 o If it is too high it may be unfair on offenders of limited means and it might also increase evasion of payment.
? Grace found that 51% of tickets issued to people who were unemployed and that only 31% of unemployed people paid the notice, compared with 59% of employed. o If it is too low, it might not act as a deterrent and might be treated as a small tax to be paid for the advantage gained by the illegal action.
? In relation to regulatory penalties, the issue has been whether those subject to such sentencing are treated too leniently.
? Croall (1992) found that few offenders were imprisoned for business regulatory offences and that fines were relatively low for offences under safety and public health legislation, although offences of fraud and tax evasion were given a broader range of punishments, including custody.
? Webster (2015) has been critical of recent trends, pointing out that the number of financial penalties (sanctions) imposed on benefit claimants by the Department of Work and Pensions now exceeds the number of fines imposed by the courts. o Also argues that the transgressions which are punished by this system are almost exclusively very minor matters. Community orders Policy issues
? More recently the government has been concerned to improve the transition from prison to community to enhance rehabilitation. P346
? Offenders who are not sentenced to a community penalty but are given a suspended custodial sentence and those who are on release from a custodial sentence are an increasingly important set of 'clients' for the Probation Service and the recently formed community rehabilitation companies.
? A major issue is who delivers community punishment and supervision. The development of community penalties
? At the beginning of 20th C there was little the sentencing court could order between prison and the forerunner of the conditional discharge except for fines.
? Probation of Offenders Act 1907, Criminal Justice Act 1948 and Criminal Justice Act 1972 introduced probation, attendance centre orders, and community service orders, respectively, with compensation orders becoming sentences in their own right in
1988. These new disposals referred to as 'intermediate sanctions' or 'alternatives to custody'. o But their use was inconsistent and there was pressure for clarification. o Also concerns that the new sanctions lacked legitimacy in the eyes of the public. P351
? By end of 1980s the government strategy was to 'market' the top end of community penalties as sufficiently tough to be used instead of custody. The 1990 White Paper gave a high profile to community penalties, arguing that prison was ineffective and proposing that 'just deserts' should be the guiding principle even when punishment took place in the community. o Aim was that non-custodial penalties should stand in their own right, not be seen simply as alternatives to custody. Scheme proposed in 1990 White Paper and incorporated in the CJA 1991 was that the court should make the initial sentencing decision on retributivist principles, and then consider the other aims of sentencing when choosing the particular community penalty to impose. o Desert determines the size of the penalty, and suitability dictates its form. Various pieces of legislation made amendments to community sentencing, extending the possible use of such orders for fine default, introducing new names for existing orders, and introducing a range of new requirements that could be added to a community rehabilitation order. Whole of the extended 1991 scheme was re-enacted in the Powers of Criminal Courts (Sentencing) Act 2000 and had the following elements: o 'Community orders' covering a range of existing penalties which became 'sentences of the court' rather than alternatives to punishment. o Fines as the presumptive sentence with legislative hurdles to discourage inappropriate use of community (and also custodial) penalties. o A primary sentencing decision on the basis of seriousness as to whether to impose a community penalty, plus subsequent decisions on the type of community penalty and the commensurate 'amount' of the community penalty. P352 o Punishment and rehabilitation as the aims of probation supervision. At beginning of 21st C there was concern that this scheme was not adequate. o Halliday Report proposed 'more flexible and effective community sentences' (Home Office 2001) to provide the courts with 'a menu of options to choose form, providing elements of punishment, crime reduction and reparation, to fit both the offender and the offence'. CJA 2003: seriousness and liberty 1990 White Paper proposed that the new statutory rationale of just deserts would operate in community sentences as 'graduated restrictions on liberty, which are related to the seriousness of o??Theoffending' and the sentencing framework introduced by the CJA 1991 incorporated these ideas. o CJA 2003 largely repeated this approach, notwithstanding the emphasis on persistence and on risk.
? Just as with custodial sentences, a statutory hurdle was enacted for community sentences in CJA 1991. o 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'.
? CJA 2003 heralded a more utilitarian approach to community sentences, which proposed a new single community punishment order with 'ingredients' specified by the court instead of the existing community penalties. o Specified elements would be chosen from compulsory programmes aimed at changing offending behaviour, compulsory work, restrictions and requirements such as a curfew or electronic monitoring, reparation and supervision to support resettlement and enforce the sentence. o White Paper endorsed approach of Halliday Report in relation to punitive weight and guidance on the CJA 2003 and was subsequently framed in relation to three sentencing ranges (low, medium and high) although flexibility is urged.
? Situation further complicated by new CJA 2003, s.177(2A) inserted by Crime and Courts Act 2013, Sch.16(1), pa.2 such that, where court makes a community order, it must o Include in the order at least one requirement imposed for the purpose of punishment, or o Impose a fine for the offence in respect of which the community order is made, or P353 o Comply with both of paragraphs (a) and (b). Choosing the community punishment
? CJA 2003 simple empowered the courts to make a community order imposing on the offender 'any one or more' of the specified requirements.
? The problems of choice remain.
? The difficulty for the courts of balancing proportionality with 'suitability' persists.
? Writing before the 1991 Act, Wasik and von Hirsch concluded that the punishment component, commensurate to seriousness, must take precedence, and utilitarian aims could only determine the substitution issue.
? Morris and Tonry (1990), using practice in the US, argued for much more interchangeability of punishment but when drafting what became the CJA 1991, the government appears to have taken on board the suggestions of theorists such as Wasik and von Hirsch. P354
? There is still the difficulty of calculating the amount of deprivation of liberty which is proportionate, and even if this is done satisfactorily it may mean that the amount of rehabilitation imposed is increased because of proportionality requirements rather than what is required to prevent reoffending.
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