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Sentencing 1st Class Answer

 

The terms “punishment” and “rehabilitation” are often presented as alternatives between which we must choose. Conversely, some argue that for punishment to be truly effective, it must have a firm focus on reform and rehabilitation. Discuss to what extent sentencing can be a rehabilitative exercise. In your answer engage with theoretical perspectives as well as the various ways rehabilitation has threaded throughout the topics of the module.

 

Introduction

 

Punishment has always been the primary goal of sentencing within the UK criminal justice system. Nevertheless, as the criminal justice system and society have evolved over the years some believe that punishment is not the best option when sentencing and that there should be more emphasis on rehabilitation in society. However, in order to evaluate the terms punishment and rehabilitation, one must first discuss criminal behaviour. Nowadays, criminal behaviour is largely due to living in poverty, poor family life, and poor education resulting in poor socialisation. In spite of this, society still deems it necessary to punish criminal behaviour although rehabilitation and reform are often encouraged.

 

This essay aims to critically evaluate the terms ‘punishment’ and ‘rehabilitation’ with a focus on the contrast between the two terms and the development of rehabilitation and reform in society. When examining the development of rehabilitation this essay will focus on the anthropocentric model of rehabilitation as this is the primary model used in the UK criminal justice system. In addition to this, this essay will evaluate the claim that for punishment to be effective in society there must be a firm focus on rehabilitation. Additionally, this discussion will evaluate the claim that the UK criminal justice system will benefit from keeping these terms separate. When evaluating the extent to which sentencing can be a rehabilitative exercise this essay will focus on non-custodial sentences with a particular emphasis on community service orders, combination orders and probation.

 

Sentencing, Punishment, and Rehabilitation in the Criminal Justice System

 

To evaluate the terms punishment and rehabilitation, one must first define sentencing and how the three terms intertwine. Sentencing is defined by Wasik as “what happens from the moment when a person charged with an offence ceases to be merely ‘the accused’ and becomes the ‘offender’.” Sentencing is guided by legal principles and statute but is ultimately at the discretion of the Judge provided they follow the general sentencing framework for the offence in question.In doing this, the Judge will consider the nature of the crime, aggravating and mitigating factors, as well as the risk of reoffending. Sentencing is a requirement in society mainly to protect the public from criminal behaviour, and it is through sentencing that the Courts provide punishment and rehabilitation to those partaking in criminal behaviour. Therefore, it can be argued that sentencing can be a rehabilitative exercise.

 

Punishment can be seen as ne peccetur meaning to prevent any future wrongdoing or quia peccatum est meaning because of wrongdoing in the past. This is a debate amongst many scholars, some believe in consequentialism which is the former and argue that in order for punishment to be successful there must be some benefits to the person being punished i.e., rehabilitation, incapacitation, and deterrence from crime. In contrast, some believe in ‘just desert’, the latter statement that punishment is because of wrongdoing in the past and focuses on retributive justice. The aim of punishment in the UK criminal justice system is to address criminal behaviour within society. The primary goal when enforcing punishment through the criminal justice system is deterrence to reduce the amount of criminal activity, and the risk of offenders reoffending again by enforcing the idea that there are consequences for engaging in criminal behaviour.

 

Similar to the punishment models, rehabilitation can be seen in two ways either as being anthropocentric or authoritarian. Firstly, the authoritarian model of rehabilitation is defined by Rotman as a less extreme version of the “old repressive model, seeking compliance by means of intimidation and coercion.” This model is arguably not effective as it focuses on deterrence and reducing crime through methods of coercion therefore rendering it repressive. The anthropocentric model of rehabilitation is seen as the “humanistic model of rehabilitation” and implies that the offender should be treated morally and humanely as opposed to the authoritarian model. This model focuses on the importance of considering the rehabilitation needs of the offender and consideration of their personal circumstances. This is the primary model used in the UK criminal justice system and further proves that sentencing can be a rehabilitative exercise.

 

Sentencing as a Rehabilitative Exercise

 

To evaluate the extent to which sentencing can be a rehabilitative exercise, and whether this should be used in conjunction with punishment, one must first evaluate the purpose of sentencing. Sentencing has several aims namely, punishment, deterrence, rehabilitation, reparation, incapacitation, and retribution. Retribution is an important function of sentencing in the UK criminal justice system as it allows for the offender to be punished fairly for the crime they committed. Therefore, discretion plays a huge role in the sentencing process and allows offenders to be sentenced appropriately. No two crimes are the same, as such the Judge must use discretion, looking at the aggravating and mitigating factors of the case to issue a fair sentence. Incarceration may be necessary in some cases however it is not a requirement for ‘just deserts.’

 

A common sentence in the UK which is seen as a rehabilitative exercise is a non-custodial sentence. Non-custodial sentences include probation, fines, reparation, and restitution. In examining the extent to which sentencing can be a rehabilitative exercise this discussion will focus on probation and reparation based sentences, namely community service orders. To ensure that rehabilitation plays a part in punishment, Judges may issue a combination order generally combining probation (which is seen as a punitive exercise) with a community service order. This limits the freedom of the offender without issuing a custodial sentence but also allows them to give back to their community as a means to rehabilitate them and deter them from reoffending. As such, it is evident that sentencing can be a rehabilitative exercise through the use of non-custodial sentences and reparation orders. Combination orders combine punishment and rehabilitation in one which allows the offender to take accountability for their actions but also reintegrate themselves into society and focus on turning away from crime without having to serve time in prison. However, it is important to note that prior to 1991 in England and Wales probation was not seen as punishment. Bottoms explains that in accordance with the Criminal Justice Act 1948 probation was considered expedient thereby seen as an option “instead of sentencing” the offender.

 

Evaluation of Non-Custodial Sentences as a Rehabilitative Exercise

 

As previously mentioned, non-custodial sentences can be seen as a rehabilitative exercise in sentencing; but this poses the question of how? Studies show that offenders who are treated with a rehabilitative approach are less likely to re-offend. A paper written by the Prison Reform Trust found that “reoffending rates are lower for people given a community sentence subject to a mental health treatment requirement”. Additionally, the study also found that short-term. custodial sentences have a high rate of reoffending and “current evidence does not suggest that increasing the length of prison sentences is an effective way to reduce reoffending.”Therefore it is clear that sentencing can be a rehabilitative exercise. An example of sentencing being used as a rehabilitative exercise is through the use of community service orders. These orders were introduced through the Criminal Justice (Community Service) Act 1983. Community service orders reduce the risk of reoffending, particularly when used in conjunction with drug treatment, sex offender treatment etc. This further shows that non-custodial sentences can be seen as a rehabilitative exercise, as according to Kevin Marsh, “prison is not an effective means of reducing re-offending.” Research by Shadd Maruna refers to community service orders as ‘paying back’ or ‘making good’. The idea of an offender ‘paying back’ to the community is an example of the anthropocentric model of sentencing whereby the focus is on how to deter the human offender from crime and use rehabilitation as a means to change one’s attitude. That being said, scholars have noted that offenders may see probation as a “more dreaded penalty” in comparison to custodial sentences. This is generally in cases where offenders are sanctioned with intensive forms of probation such as increased surveillance and wearing an ankle bracelet.

 

It should be noted that whilst community service orders reduce the risk of reoffending and are evidence that sentencing can be a rehabilitative exercise, the amount of community service orders issued has decreased by 50% for men and 48% for women from 2012-2022. As such, in order to improve sentencing as a rehabilitation exercise and use punishment and rehabilitation in conjunction with one another there should be an increase in the amount of community service orders issued.

 

Conclusion

 

It is evident from the findings in this essay that sentencing can be a rehabilitative exercise if properly executed. Presently, the UK criminal justice system has a focus on custodial sentences and punishment as opposed to deterrence and rehabilitation. This can be seen through the lack of community service orders being imposed despite evidence suggesting that these orders reduce the risk of reoffending. In order to allow sentencing to be a rehabilitative exercise there must be a shift towards non-custodial sentences, such as the community service order. Additionally, it can be seen that punishment and rehabilitation can be used in conjunction as opposed to alternatives between which we must choose. This is evident through the combination order which allows for rehabilitation as well as having punitive measures such as reporting to a probation officer.  In conclusion, punishment and rehabilitation are not terms between which we must choose, and they can be used effectively in conjunction with one another. Additionally, it is evident that sentencing can be a rehabilitative exercise however, the UK criminal justice system must avail of the options of non-custodial sentences whether it be a combination order or a community service order to promote rehabilitation to its fullest extent.

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