The purpose of this essay will be to attempt to establish the relative advantages of both custodial and non-custodial sentencing in relation to punishing offenders in the United Kingdom. The concept and rationale for punishment will be discussed, drawing on theoretical perspectives as analytical and evaluative tools. The essay will conclude with an overall evaluation of the merits and demerits of custodial vis i?? vis non-custodial sentencing and a projection for the future of sentencing.
Garland defines punishment as a 'complex social institution,' arguing that it is a mechanism for dealing with criminals in a legally administrative way, but that it is also an expression of state power, a statement of collective prevailing morality, emotional expression and economically-linked social policy (Garland, 1990, p. 287). Punishment may also be defined as anything that is unpleasant, a burden, or an imposition of some sort on an offender.
Thus, compensation is a punishment, as is having to attend a counselling program, paying a fine, having to report to a probation officer on a regular basis, or doing work for a crime victim (Duff 1992, p. 73; Davis 1992, pp. 44-45). Why society punishes and what punishment can and cannot accomplish are central issues to this essay so that the concept of punishment, manner and the degree to which it is metered out can be understood; not just as a means of sanctioning people for violating the law per se, but in gratifying prevailing social organisation (Garland, 2000, p.
381). ). Basically, punishment takes two forms in dealing with offenders in the United Kingdom. Custodial sentencing tends to generally be viewed as more punitive than non-custodial sentencing and remains a contentious debate as far as being an effective measure in reducing the likelihood of re-offending than the latter. Wilson claims most studies show that between 25 – 50% of offenders that are incarcerated, re-offend within one year of release (Wilson, 2000, pp. 113-115).
Whilst there may be no hard evidence to suggest that non-custodial sentencing is anymore efficacious than custodial sentencing in reducing recidivism, it at least, at face value, offers a more purposeful, consequentialist form of punishment than the latter. This essay will now attempt to unpack those values, weighted against the merits of custodial sentencing. Non-custodial punishment, in its varying forms is a concept that is relatively new to society compared to that of incarceration, which has been an intrinsic accepted form of punishment throughout history.
Lord Chief Justice Woolf has argued: "Neither the public nor sentencers have sufficient confidence in the community alternative. What we have to achieve is a situation where our punishments are ones, which the public find more acceptable than they do at present. "….. Lord Chief Justice Woolf, December, 2000. In addition, most members of the public know little about sentencing options other than imprisonment, and overall, do not know the aims of community-based sentencing (Alternatives to Prison, 2000, pp.
16-17). Considering the foregoing, there does appear to be a public and judicial hurdle to clear as far as community-based punishment being effectively put into workable practice is concerned. Lord Woolf's comments relating to the public's need to accept and have confidence in community alternatives for punishing offenders maybe difficult to achieve if the public is largely unaware of the nature and goals of the alternatives to custodial punishment.
Additionally, there are claims that the public, apparently favour more the punitive custodial treatment of offenders than the generally perceived 'softness' of community-based sentencing as a means of punishment. A recent (January, 2003) Daily Telegraph survey showed that Tony Blair's 'tough on crime' philosophy appears to have been poorly received by the public. The survey was carried out using a convenience-sampling frame of 1,829 respondents who were questioned in public in the Greater London area. Only 25% considered non-custodial sentences as an 'appropriate' alternative to custodial sentences, as means punishment.
When asked, nobody thought Mr Blair had done 'very well' in fulfilling his 'tough on crime and tough on the causes of crime' agenda and only 15% conceded that the Prime Minister had done 'very well. ' So, the degree of confidence in community-based sentencing as a punishment alternative appears to rather low, based on this particular survey (Johnston, 2003). Lord Chief Justice Woolf insists: " Everybody thinks our system is becoming too soft and whimpish. In point of fact, it is one of the most punitive systems in the world. " (Alternatives to Prison, 2000, p. 4).
The fact that the United Kingdom prison population currently stands at around 80,000 – which is far higher than most of around 21 other European countries offers some support to this statement, with only Portugal imprisoning more offenders on a per capita basis (Cavadino and Dignan, 2002, p. 14). Durkeimian philosophy goes some way in explaining societal responses to crime, in that it offers a rationale for the perceived need to punishment. In this instance, the need is for the aforementioned more punitive sentencing that results in incapacitation.
Durkeim argues that 'punishment is an index of society's moral codes' plus a demonstration of the force of state power and control which support's the 'norms of life,' for when they are weakened by crime, they are less binding and stand to lose their morally upholding value (Garland, 1990, pp. 1, 33). Durkeim's argument highlights the fears of the public, in that the conventions and codes that they uphold are being threatened by crime, therefore more stringent measures of punishment must be metered out to protect the moral order.
For the Criminal Justice System, this poses a problem. If it is to hand out excesses of custodial sentences, it runs the risk of being seen as punishing too harshly and thus, over zealously exercising its power and control. Political persuasions and some sections of the media and public may perceive this as the nation state being too powerful and undemocratic, thus becoming an object of fear, rather than a body reason.
This in turn, may compromise the independence of the judiciary, in that they may feel 'obliged' not to meter out sentences that they feel are appropriate for offenders; considering prevailing themes of social organisation – they may steer their sentencing towards the non-custodial domain if they are not to stand in isolation from the media, existing government and some sections of the public. Therefore, there are several conflicts of interest to be considered when discussing the relative merits of non-custodial vis i?? vis custodial sentencing.
Non-custodial sentencing can be more cost-effective than custodial sentencing. Around 8 million hours of community service are carried out in the United Kingdom each year by offenders sentenced under the Community Punishment Order (previously a Community Service Order). The offender has to complete between 40 and 240 hours unpaid work per year. Broadly, duties may consist of: dredging canals, graveyard clearance, village hall renovation, playground building and cycle path construction, or indeed a multitude of other services that will benefit the local community (Alternatives to Prison, 2000, p.5).
The Community Punishment Order is not an option for the offender, as he or she is obliged to complete it as their sentence; therefore it is a form of punishment, but punishment with purpose that benefits the community and saves government expenditure. For example, the cost of one year's imprisonment is around 27,000 for an adult offender and 42,000 for a youth offender (under 18) in detention. Community Punishment Orders, Community Rehabilitation Orders, Community Punishment and Rehabilitation Orders range between 4000 per order put into practice.
Therefore, the potential saving as opposed to imprisonment is considerable (Alternatives to Prison, 2000, p. 24; Cavadino and Dignan, 2002, pp. 143-144). Custodial sentencing has its place in punishing by removing the most dangerous convicted offenders from society that are a threat to the public. Previous convictions may be taken into account when determining sentencing and the likelihood of re-offending. However, who truly knows that a person will re-offend? Can such an assumption be fair on the offender?
Sentencers may be playing a safe option in the case of offenders who have committed the more serious crimes, by incarcerating them to avoid a societal moral backlash should they re-offend (Wilson, 2000, p. 113). Electronic monitoring (otherwise known as tagging) is an alternative to custodial punishment that has several advantages. Custodial sentences can disrupt the work and family life of offenders. Two thirds of offenders lose their jobs whilst in custody, whilst over two fifths lose contact with their family.
It is also a cost effective alternative to custody which aims to stop 'pattern' offending that occurs at particular times of the day and in particular places. This new form of sentencing facilitates the offender remaining at home, and still being able to go to work and contribute to the income of the household. Of particular importance, the family unit can stay intact, avoiding any emotional distress that might result from the offender being separated from home life (The Source, 2003, p. 1). Furthermore, high prison populations induce overcrowding, which usually result in poor, inhumane conditions in custody.
This infringes the basic human rights of people within a supposedly civilised democratic society. Problems also exist with drugs in prisons. Random mandatory drug testing is carried out, but does not significantly reduce the use of drugs and ironically it can increase the use of hard drugs. For example, Heroin has a shorter life in the bloodstream than cannabis, so is less likely to be detected by random testing. This could create a new market for hard drugs in prison and lead to opiate addiction (Gore et al, 1998, p. 3).