A more recent version of these Risk And Dangerousness notes – written by Oxford students – is available here.
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Risk, Dangerousness, And NonCommensurate Sentencing. Sentencing and Punishment: The Quest for Justice: 'Risk and Danger' Easton, S. and Piper, C. (2012)?Permanent removal of offenders from public life - this is not just deserts, but management of risk by confining offender to within the walls of the prison. Indeterminate sentences require evidence of rehabilitation before release. Even if there is no prospect of reform at lease the offenders can be contained. Prison becomes WAREHOUSING, a kind of storage of offenders. Garland's "culture of control" - based on idea of selective incapacitation, where some offenders are given custodial sentences which could not be justified on retributivist grounds. Distinction between: o Criminologies of "everyday life" - sees criminals as normal human beings, can be deterred using pragmatic techniques. Reduction by reducing opportunities for crime, for example focusing on security weaknesses and other means of situational crime prevention. o Criminologies of "the other" - focuses on values, seeks to assert moral standards. The normality of crime is not ok and needs to be combatted. Certain criminals are not in fact, normal, but rather wicked and evil! They are inherently dangerous and "other". Deal with using indeterminate custodial sentences or community exclusion order.Rivera Beiras - noted the increase in punitive management of poverty and the criminalization of dissenters. Shift towards an exclusion based approach. This represents the view that if the individual is responsible for crime then it is pointless to search for the underlying causes of crime. States with larger minority populations such as the US tend to have higher incarceration rates.There is a trend towards a more economic approach to punishment, demonstrated by having aims categorised as "effective", "value for money" and "meeting performance targets". MANAGERIALISM. Multi-purpose techniques saturating criminal justice with measured performance strategies. Old language of social causation has been replaced with words including "risk factors", "crime costing" etc, bringing economic forms of calculation into criminological field. (Garland)
Notions of riskJust deserts sentencing should not be looking at risk because it looks at the past rather than the future. Focuses on the seriousness only of the offences already committed.The Risk Society o Apparent increasing preoccupation with risk in economic, personal and political realms. Management of insecurity (at end of 20th C). Society increasingly worried about the future. Idea is to reduce social anxiety. o Attempts to manage crime and risk of crime are not confined to sentencing. CJS is only one part of government's crime reduction strategy. Sentencing is of huge political importance, but its importance is of decreasing importance. A lot of crime is not reported, so a system of new initiatives has been introduced, we now have a new and different infrastructure. More of a focus on community partnerships, empowering communities with crime-prevention techniques. Emphasis on costeffectiveness, may cut across justice.
oGarland says that we have grown used to crime, and accepted harsh punishments and punitive segregation. Justified the development of means of exclusion in order to control dangerous offenders.
Pratt's "new culture of intolerance". o Moving away from civilizing punishment, encouraging harsher penal policies. Focus on the seriousness of the crime. o FOCUS ON THE DANGEROUS OFFENDER. Categories of who is dangerous has changed over time. The categorization of "dangerous" offenders is now used in CJA 2003. o But calling certain criminals "dangerous" in not actually a new thing. Stems from 19th C, part of State's protective measures against unemployment and poverty... The dangerous are people who present social dangers. But it is not always clear what we mean when we say that someone is "dangerous". Different constructions have been developed by different groups over time. o Floud Committee - dangerous is not objective. Said angers are unacceptable risks.
Incapacitation And Public Protection????The utilitarian justification. In the UK and US, incapacitation has a strong presence in the field of penal policy. This is a utilitarian approach because the aim is to maximise happiness on society, and this can be done by removing dangerous offenders. Not inherently incompatible with incompatible with the rationales behind rehabilitation, because incapacitation can be combined with rehabilitation strategies. In utilitarian terms, society should be protected for as long as possible from dangerous offenders. The most effective form of incapacitation is the death penalty, however in abolitionist jurisdictions imprisonment is the favoured method. But this does not solve the long-term problems of crime. o There still exists the risk of prisoners escaping o Opportunities to commit crimes in prison o Offending may continue on release Using prisons as warehouses for offenders is not a cost-effective strategy, and for some crimes it may mean that other offenders will move into the incarcerated offender's territory. Does incarceration even work?
o May ultimately lead to higher offending rates o Dehumanising of offenders in prison o Opportunities to learn from other offenders Coalition government is looking to cut the number of people in prisons because of the financial burden. The reductions in crime from the use of custody are fairly minimal; punishment is only one factor in criminality. Incapacitation is an extremely expensive option for the reductions that it yields. Is it better to invest resources in policing rather than punishment?
In recent years, because of the drain on pubic resources, there has been a tendency to reserve prison for those who are most likely to reoffend.
Selective and categorical incapacitation Distinguish between the different forms of incapacitation. Both are forms of predictive sentencing. Who should shoulder the risk of harm? The potential future victim or the offender by receiving a longer sentence than he may deserve.
? Selective incapacitation - incapacitating individuals who are at a particular risk of reoffending. Von Hirsch suggests that factors would include drug use, age, employment etc. Attractive to policy-makers as it offers possibility of reducing crime by incarcerating the most crime-prone offenders. But could be seen as unethical, offender may be given higher sentence than he deserves and denies each offender autonomy, sacrifices principle of proportionality for public protection. Presumes offender will follow a particular
?path. Although risk management factors are becoming more sophisticated, they are insufficiently precise so may be either overestimated or underestimated, may put offenders human rights at risk. Categorical incapacitation - incapacitating those who commit a particular category of offence (offences which carry a risk of reoffending such a burglary). Satisfies equality principle, all burglars treated the same, even though we do not know for certain which ones would have reoffended. Parity between offenders of the same crime. We are a long way off from perfection in our predictions of future offending. Overestimating will lead to unnecessary incarceration. But public are more concerned that the risk will be underestimated., do not want dangerous offenders to be free in the community.
Mass imprisonment in the United States??
There are currently over 2m people in US jails! Almost half are African American males. One in eight black males in their 20s is in prison. Attributed to war on drugs, increase in mandatory and determinate sentences. Also increasing inequality in the 1990s, widening of the gap between middle and black working class. Garland argues that the existence of capital punishment is also a significant factor. Life imprisonment and lengthy sentences seem humane compared to the death penalty. Problems - substantial economic costs. Wide scale incarceration is difficult to sustain considering the US fiscal crisis. Increased pressure on the system and overcrowding, but despite this, politicians are reluctant to reduce incarceration levels because of populist punitivism and social anxiety. Crime is a political issue.
Sentencing On Risk Of Harm??
Early provisions for preventive detention aimed at persistent offenders, professional criminals who saw criminality as a way of life. Threat to other clases and represented to refusal to conform. General risk to society. This type of sentencing was only used for a minority of the most dangerous offenders. So which type of offender is NOW considered most dangerous? Public and legislative concern with violent and sexual offenders. Recent legislation has also focused on drug traffickers, domestic burglars and those possessing firearms. CJA 2003 includes a whole section on dangerous offenders (ss225-228). Sentences include life imprisonment, IPP (imprisonment for public protection) and comparable sentences for those u18. This CJA officially introduced a legislative distinction between dangerous and non-dangerous offenders in custodial sentencing. Longer than commensurate sentences o Protective sentence introduced in CJA 1991, allowed sentencers to impose longer than determinate sentences than were proportionate to seriousness on sexual/violent offenders. Selective incapacitation. Narrow range of offences that were subject to this demonstrated the general lack of keenness for custodial sentencing. Could only be used where sentence "would be adequate to protect public from serious harm". The most difficult job for the sentencer here was how to calculate the additional sentence that was to be added on. Issues were raised about the first part of the sentence being punitive and the second part being protective/preventive. o R (Giles) v Parole Board - compatibility of this with Art 5 ECHR, CA and Hl refused to treat the different parts of the sentences as partly punitive and partly preventive. Parliament and judiciary were at cross-purposes here. The additional custodial element was not effective and the CJA 2003 discontinued the LTC sentence. o Mandatory (minimum) sentences o Courts had to use specific minimum sentences for particular offences. Problematic, restricted judicial discretion. Contained in Powers of Criminal Courts (Sentencing) Act 2000, for example minimum of three years on third domestic
?burglary conviction. Further mandatory minimums have been introduced since 2000 in various other pieces of legislation. Discretionary life sentence o Available where statutory maximum is life. Wilkinson says this should only be used in most exceptional circumstances. Most commonly imposed for rape and manslaughter. Governed by by offences in Sch15 CJA 2003 and criteria in s225 (that the court considers the seriousness of the offence to be such that imprisonment for life is justified) and provided offender has been labelled dangerous under s229. Court has considerable discretion in establishing dangerousness and seriousness. Automatic life sentence o Mandatory for second serious violent or sexual offence, had to be on the list provided. When imposing life sentences the court must specify the minimum term (the punishment and deterrence bit).July 2011 - Coalition said it would bring in new legislation amending sentencing framework of protective sentencing under CJA 2003. The current rules were inconsistent. Proposed: o abolition of IPP to encourage straightforward life sentences o two strikes policy for mandatory life sentence in second serious sexual/violent crime o criminals convicted of serious sexual/violent crimes cannot be released until 2/3 sentence completed, unlike the usual halfway point. New extended sentence. o extension of licence period upon release for these criminalsIPP o o
An indeterminate sentence, basically a life sentence but will different release provisions. Originally, where only one of the two requirements for a life sentence (legally available/sufficiently serious) this could be imposed by the courts instead. LASPOA Bill proposed abolition of this - ASK ABOUT THIS. Think this has now been abolished?
The Assessment Of Dangerousness??S229 CJA 2003. No definition provided but gives guidance in assessment. Controversial presumption of dangerousness. 2007 SJC published guidance dealing with assessment of danger o significant risk of offender committing further offences o Significant risk of serious harm to public (Court is only guided but not bound by this.) CJIA 2008 amended CJA 2003 to remove presumption of dangerousness. The dangerous mentally disordered offender. o S1 MHA 1983 governs whether an offender can be categorised as mentally disordered. If criteria are met, various therapeutic disposals can be ordered by the court upon conviction e.g. Hospital order.
Post CustodyPrevention Order o Some can be made by the court without a charge having been brought. Can be ancillary and reparative (just deserts), or may be added to punishment.?
Justifications for early release Public criticism over the fact that prisoners are not serving the whole of their sentence, but early release is an important management tool. Introduction of parole replaced "ticket of leave system" where prisoners were awarded for good behaviour in prison, and remission, where time is taken off for good behaviour.Parole is EARLY RELEASE ON LICENSE. Provided opportunity to control/rehabilitate offenders on their release. Possibility of recall for public protection. Attempt to get the offender to re-integrate into the community.?
:( Early release upsets the fine-tuned calculated sentences.
:( Problems with public perception/legitimacy, people think that prisoners aren't really serving their whole sentence.Fixed-term prisoners o Prisoners are released at halfway stage of sentence. The second half of the sentence is the licence period. Indeterminate sentences o Issues over use of executive discretion of judicial, to determine release date. Fir all life sentences judge must set tariff (no longer called this) and explain this. Murder o Mandatory life sentence - in Anderson HL held that procedure of judge conferring with the Home Sec for final decision is contrary to Art 6 ECHR. CJA 2003 now requires judge to specify minimum term in open court. o The licence remains in force until offender's death. Could be recalled to prison at any point.?
Conclusion?Protective provisions in sentencing lead to disproportionate sentences. Raises moral and human rights problems. The question is how much inaccuracy and individual injustice (that stems from risk-based sentencing) can we justify for public good?
The scope of the class of "risky" offenders is now wide. Ashworth says this is objectionable. Too much focus on offender's record means offence is the peg in which to hang to protective policy upon. Sentencing on risk is increasing but there are also a number of other aims of punishment which have come to the forefront, including rehabilitation.
Principled Sentencing: Readings On Theory And Policy (3rd ed.) von Hirsch, A., & Ashworth, A. (Eds.). (2009). Incapacitation IntroductionIncapacitation is the idea of restraint: rendering the convicted offender incapable, for a period of time, of offending again. o It doesn't purport to change the offender's attitudes or habits so that he becomes less inclined to reoffend, like rehabilitation. o Incapacitation seeks to put obstacles in place that prevent the offender form carrying out any criminal inclinations he may have. o Usually the obstacle is the walls of a prison, but there are other incapapcitative techniques possible - e.g. exile or house arrest, or even disqualification from driving.Incapacitation is most commonly sought through predicting the offender's likelihood of reoffending. Those deemed more likely to reoffend are to be restrained from this 'recidivism' through incapacitation. o Likelihood of reoffending can be calculated through various statistical means. Factors like previous arrest and convictions, social and employment history, drug etc. can all be used (to a limited extent) in order to predict how likely a given convicted offenders are to reoffend. o Andrew von Hirsch argued in the 1970s that those carrying out predictive sentencing in the real world have a tendency to over predict, however. There is a disturbing incidence of 'false positives'.
? This is particularly the case when forecasting serious criminality, and specifically violence. Many of those designated as dangerous offenders turned out not to reoffend when allowed to remain at large.
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