Compare and Contrast the Advantages and Disadvantages of Custodial Sentences. Under What Circumstances Should Each be Used and How Might their Advantages be Maximised and their

Disadvantages Minimised.

Swayne Leo Hosein-Cadogan

Teesside University

Compare and contrast advantages and disadvantages of custodial sentences,

giving suggestions on how to maximise strengths and minimize weaknesses.

Hi Leo,

Good reference list, all in full APA format, however, not all references within

the text are – please refer to the APA Manual (6th Ed.) for further information.

Good use of sub-headings throughout, although one at the beginning would

have been beneficial. There are minor grammatical errors throughout (e.g.

missing or incorrect use of full stops; use of semi-colon instead of a colon

etc). You talk about the Criminal Justice System Northern Ireland, then in the

next sentence (p.1), you introduce the Criminal Justice Act (2003), is this

Ireland or England – what is the Sentencing Council – which country? You

must make these things clear to the reader. You introduce the various

sentences starting on p.2, however, these are very descriptive and you do not

seem to explain what the advantages and disadvantages are of these

sentences. Page 6 contains a lot of very short sentences, please use longer,

more meaningful sentences. In addition, the first sentence under the heading,

‘Retribution’ is incomplete. You should avoid using abbreviations like ‘id’ (p.

11) in academic writing. The bullet points on pp. 11-13 are inappropriate.

Overall, I felt that you did not answer the question sufficiently and much of the

essay was very descriptive with no critical analysis.

Overall, a limited understanding in key areas of knowledge relevant to the

work with insufficient evidence of ability to integrate and analyse concepts to

provide a valid discussion. You have 4 weeks from the date of the marks

being released in which to resubmit this piece of work.

Punishment under law is the authorised imposition depravation of freedom

privacy, or any other goods a person has a right too; or the imposition of special

burdens because they have been found guilty of some criminal violation. Typically

though not invariable involving harm to the innocent” (Stanford Encyclopaedia of

Philosphpy ) Punishment serves five major purposes; retribution, restitution,

incapacitation, deterrence, and rehabilitation (Libman 2009;) Retribution— offenders

are made to take responsibility for their actions, they get their ‘just deserts’ and are

punished/sanctioned based on the seriousness of their actions. Restitution—

offenders are required to compensate the victim(usually financially) and society for

the harm caused. Incapacitation—offenders are removed from society to prevent

them from committing further harm or menacing society. Deterrence—offenders are

deterred/discouraged him or her from committing future offences and he serves as

an example to deter others from committing offences. Rehabilitation— offenders are

reformed into law abiding citizens fit to be re released into society.

Custodial sentencing is one whereby a person’s liberty is restricted by a prison

sentence or a stay in a youth centre.(Criminal Justice System Northern Ireland)

Custodial sentences are the most severe penalties available to courts. Under the

Criminal Justice Act 2003 they can only be imposed for offences so serious that this

is the only justifiable penalty for the offence, or to protect the public form violent and

sexual offenders. The sentencing council distinguishes three types of custodial

sentences; determinate indeterminate and mandatory life sentences (Sentencing

Council).

Determinate Sentence

Determinate prison sentences— this is the most common type of custodial

sentence, whereby the court sets a fixed length for a prison sentence. The time set

will be the maximum time the offender will spend in prison; however he is unlikely to

spend the entire time in prison (Sentencing Council). Magistrate’s court cannot

sentence more than 6 months or less than five days for a single offence, no more

than 12 months for 2 or more either-way-triable offences, to be served consecutively.

Minimum of 7 years for person over 18 convicted of trafficking Class A Drug, with 2

or more previous similar convictions. Three years for a third domestic burglary,

unless unjust in all circumstances (Chapman and Niven, 2000)

With young offenders introduced the Detention and Training Orders as. These

are combined sentences with half the term served in custody and half served under

supervision in the community (Youth Justice Board).

Anyone 12-17 years old can receive a DTO form either Youth Court or Crown Court

for any imprisonable offence serious enough to warrant custody under section 1 of

the Criminal Justice Act 1998. However for those 12 to 14 the court must be

convinced that the defendant is a persistent one. Orders can be between four to 24

months, and must not exceed the maximum terms that would be imposed on an

adult for the same offence.

A Section 90/91 this can only be imposed by the Crown Court for offences that

would warrant a 14 year conviction of an adult offender. For murder the mandatory

life sentence falls under Section 90 of the Powers of the Criminal Court Act 2000,

other serious offences fall under Section 91. The maximum offence for a youth must

match the maximum for an adult (Youth Justice Board).

Youths may be housed in secure children’s homes, secure training centre or youth

offender institutions.

Secure children’s homes are run by local authorities for offenders aged 12-14, girls

up to age 16 and boys 15-16 who are assessed as vulnerable.

Secure training centres are private run housing 17 year olds, focused

Youth offender institutions (YOI) are private and prison run for 15-21 year olds,.

Each provide tailored programmes for educational and vocational training,

healthcare and mental health and social care (rehabilitation) onsite. .

Indeterminate prison sentences—sentences where the court sets the minimum

term of imprisonment an offender must serve before being eligible for release by the

Parole Board. There are two types: imprisonment for life and imprisonment for public

protection

Imprisonment for life is imposed when the offender has committed a serious

offence for which the maximum penalty is life imprisonment (or at least 10 years), the

court’s opinion is that the offender poses a significant risk of serious harm to the

public, and believe that the seriousness of the offence justifies imprisonment for life.

Imprisonment for public protection(IPP) — imposed where the offender is

convicted of a serious sexual or violent offence punishable by imprisonment for life

or detention for 10 years or more, courts are of the opinion that the offender poses

significant risk to the public, and has a previous conviction (such as kidnappings,

manslaughter, or others covered by schedule 12 of the Criminal Justice Act 2003)

Mandatory Life sentence— imposed for any offender over the age of 10 guilty of

murder. Youth sentence is termed Detention at Her Majesty’s Pleasure (under

Section 90 of the Powers of the Criminal Court Act 2000) Courts set a minimum term

the offender must serve before they can be considered for release by the Parole

Board, based on guideline in schedule 21 in the Criminal Justice Act 200 (eg. Murder

with a knife or other weapons the starting point is at 25 years).

The Crime Sentencing Act 1997 stipulates that unless the courts fine exceptional

circumstances, the minimum sentence be automatically imposed for repeat offenders

of more serious offences. This includes mandatory life for anyone over 18 convicted

of serious offence, with a prior conviction for a similar offence. Serious offences

include: rape, murder, attempted murder, violent crimes, manslaughter, and armed

robbery.

Youths guilty of murder committed under the age of 18 are sentenced to “detention

during her Majesty’s Pleasure” under the Children and Young Person’s Act 1993.

Persons under 18 convicted of other serious offences besides murder, which would

still warrant a life sentence for an adult, can be sentenced to ‘detention for life’

Release

For sentences under a year the offender will be automatically released after serving

half the sentence, with no obligations for the rest of the sentence. However, should

they commit further offences during the remaining time the unexpired part of the

sentence could be added to any new sentence imposed

All prisoners are eligible for release at the half way point in their sentence; they are

considered to be “at risk” and as such are often given compulsory supervision until

the end of their sentence. Further convictions before the original sentence has

expired results in the court reactivating all or part of the original sentence, in addition

to any new sentence imposed.

Inmates convicted of less than 12 months are released automatically with no

compulsory supervision (Automatic Unconditional Release, AUC), youths however

may be given statutory supervision for a minimum of three months or until their 22nd

birthday, whichever comes first.

Those sentenced between 12 months to 4 years are released on licence, subject to

compulsory supervision up to the three quarters point of the sentence (Automatic

Conditional Release, ACR). Some sex offenders are supervised for the entire

remaining length of the sentence under the direction of the sentencing judge.

Beaching the licence results in a recall to prison especially for sex offenders.

Those sentenced to four years or more are considered by the Parole Bpoard

annually until two thirds of the sentence is served. At the two thirds point those who

have not been paroled are automatically released on licence. Those serving an IPP

may be released on an IPP licence; they can be recalled to prison if they owe a risk

to the public. After 10 years (and then every subsequent year if unsuccessful)

offenders can apply for their licence to be cancelled, this decision is at the discretion

of the Parole Board.

Under the Crime and Disorder Act 1998, prisoners sentenced to custody for three

months or more, but less than 4 years, are eligible for release on Home Detention

Curfew (HDC). Providing they are aged 18 or over at the time of release, they are

can be released up to two months early, but must be at a specific address for at least

9 hours a day and are monitored via electronic tag. Eligible persons must pass a

risk assessment and must have a suitable address before they will be granted

release, with the final decision being made by the governor. Those required to

register under Part 1 of the Sex Offenders Act 1997, those convicted of a curfew

order, and those facing deportation do are not eligible for HDC

Prisoners on HDC can be recalled if they breech their curfew, present ad anger to

the public, if their circumstances change (like losing their accommodation), if they

are charged with a new offence, or if monitoring becomes difficult (eg. No suitable

constant electricity supply)

Lifers are not entitles for full release but may be considered for release on licence

whereby they are required to report to a probation officer. After a period of time

these reporting conditions may be lifted if the individual demonstrates no longer

necessary.

For mandatory lifers release is only authorised by the home secretary on

recommendation of the parole board after consultation with the chief justice and trial

judge.

Discretionary lifers courts can specify a term after which they can be eligible for

release. The Home Secretary must refer their case to the Parole Board (the

Secretary cannot reject a recommendation by the Parole Board) if they so believe

that custody is no longer necessary for the public’s protection the Parole Board can

direct the Home Secretary to release the prisoner.

Non custodial measures

These are further measure which although not custodial in nature are often imposed

alongside custodial custody or as part of conditional release form custody Home

Affair Committee 2002).

Community orders are regarded as penalties in their own rights and no longer just

alternatives to custodial sentences. They are imposed if the offence is serious

enough to warrant penalty, or to those released on licence or supervision. Such as

unpaid work, supervision, activity, curfew, exclusion, residence and others, alone or

in combination with each other.

Custody minus is used where an offence justifies no more than two years

imprisonment can be suspended for 6 months to two years subject to the completion

of a community order.

Custody plus is a sentences of less than 12 months that include a short period of

custody followed by a period of supervision and rehabilitation requirements in the

community.

Intermittent custody is a prison sentence to be served on weekends combined with

restrictions or obligations during the period in the community

Combination Orders are those combining probation supervision with a community

order for all offenders over the age of 16. Probation (maximum three years,

minimum 12 months) must last at least as long as the community order (maximum

100 hours, minimum of 40 hours).

Compensation orders can be imposed with any sentence (or on its own) in cases

involving death injury or loss, courts must give reasons where no orders are given.

Magistrates Court can order a maximum of £5000 per offence, the Crown Court has

no limit, not the means of the offender must also be considered.

This essay will examine the advantages and disadvantages of custodial sentences,

in relation to how well they meet the functions of punishment. Suggestions will be

made on ways in which weaknesses can be minimized, strengths maximised for the

sake of this essay custody sentences under 18 months shall be referred to as short

term sentences, and those longer an 18 months shall be referred to as long term

sentences

Retribution

Based on lex talons of biblical times that calls for “an eye for an eye, a tooth for a

tooth, and a life for a life” (Hudson, 1996). Punishment must be proportional to the

crime.

All forms of custodial sentences are retributive in nature. The criminal Justice act

2003 stipulates that custodial sentences are for offences so severe that custody is

the only justifiable penalty. Conviction imposes responsibility for the crime and

custody becomes the just deserts, with the length of sentence

Zehr (2005) maintains that retribution focuses on assigning blame then appropriately

punishing with prison being the normal route. The criminal evil is curbed by harsh

measures, which sends the message that those who offend deserve vengeance.

This Zehr argues confirms the criminal outlook as many offenders see themselves as

punishing others for some perceived or real wrong

Some advocates claim a moral link through the concept of censure—holding the

offender accountable for their conduct of which society disapproves (von Hirsh,

1994). Punishment becomes a question of accountability and responsibility for

actins deemed unacceptable Prison becomes an expression of condemnation (Bean,

1981).

In instances of short term sentences, compensation orders and community orders on

issued as part of release licence can strengthen the retributive (censure) aspect.

Incapacitation

Custodial sentences in keeping with utilitarian theory remove the offender form

society, thereby protecting the public. The incapacitation effect of prison applies

regardless of deterrence, rehabilitation or reformation of the offender (Morris, 1994).

Research in to the deterrent effects of prison are often highlight prison’s

incapacitative strength, with many researchers arguing that this is the primary reason

for the continued use of imprisonment be it long or short term sentencing (Gendreau,

Goggin & Cullen,1990;)

Indeterminate sentences have the most effective incapacitative effect of custodial

sentencing. With a minimum of 10 years for a discretionary life sentence, offenders

are guaranteed to be securely separated from society for that time period. This can

be increased with the extended sentences, whereby additional time is added to the

minimum time that must be served before eligibility for release. When released on

licence the promise of recall to prison for breach of the contracts is a further promise

of future incapacitation.

Automatic unconditional release does limit the extent of incapacitation. Without

restrictions or supervision, except in the case of young offenders incapacitation ends

with

United Nations (2005) notes that prison effect to incapacitate only works to the

extent of the sentence length. Those returning to the community on automatic

unconditional release, with the exception of youth offenders do so with no

supervision or restrictions, and little or no reintegration skills, they are more likely to

re-offend than those issued alternative sentences.

Those granted automatic condition release will still have supervision for up to three

quarters of their sentence, with other limitations such as curfew’s and limitations

imposed on community and combination orders or HDC, this may offer some

continued form of incapacitation.

The success of incapacitation supports the notion that increasing the prison

population through longer harsher sentences will lead to a reduction in crime,

however, Piquero and Blumstein (2002) estimate that for a one percent decrease in

crime there would have to be a five percent increase in prison population. This

would lead to severe overcrowding and incur massive cost to the government. This

in turn can have detrimental effect on the deterrent effect of prison (Gendreau

Goggin &Cullen, 1999) and also impact on rehabilitation (Gendreau, 1990)

Restitution

Eglash (1958)notes two schools of thought to the term restitution. The most

common is synonymous with reparation whereby the offender is required to pay

financially compensate the victim for the harm caused.

This is a function would only be fulfilled where compensation orders accompany

custodial sentences. The length of the sentence does not affect a compensation

order so even determinate sentences (AUC and ACR) would gather the same effect

as indeterminate and mandatory life sentences.

Financial compensation will help cover expenses incurred, and provides

acknowledgement that the victim was wronged (Zehr, 2005;

Eglash (1958) also note creative restitution whereby offenders give something of

themselves, back to the community. Yong Adult offenders (18-20) under DTO in

some YOIs have access to voluntary community service programmes. Community

service is a predominantly, mandatory for DTO and section 90/91 sentences, and for

release from adult custodial sentences longer than 12 months.

For the best restitutive effect community service should be available on a voluntary

basis to adults serving indeterminate and mandatory life sentences, and. It should

also be included as a mandatory part of determinate sentences under 12 months

long.

Joint survey form Victim support and Smart Justice (2006) of 982 victims of non

violent crime noted that 80% sample wanted more constructive activities for

offenders within the community, while 51% agreed that offenders should meet with

victims and make amends

Deterrence

One of the more important functions of any punishment is its ability to discourage

offenders form re-offending, either through individual deterrence or general

deterrence.

Individual deterrence is achieved by giving the offender a preview of what penalty

awaits should he re-offend. General deterrence comes in the form of legislations to

impose those penalties as well as the punishment met to others as an example

(Henderson, 1996). Custodial sentences are most severe punishments available to

the courts under the Criminal Justice Act (2003), taking away individual’s freedom,

removing them form their family, jobs, homes and stigmatizes them as criminals. The

prospect of a first or even second period of custody would deter a rational individual

form offending (Andenaes, 1968Nagin, 1998; Wood & Grasmick, 1999)

Evidence for the late 198s and early 1990s show negative correlations between

likelihood of conviction and crime rates— increase in the likelihood of being caught

correlated to decreases in crime rate (Farrington, Langan, Wikstrom, 1994; Langan

and Farrington, 1998)

Statistics give a mixed impression. Ministry of Justice notes that immediate custody

convictions for 2009 were 1% higher than those in 2008, and 5% higher than those

in 1999. Magistrate’ s Courts impose 4% less immediate convictions than in 2008,

while Crown Court saw the highest rate of immediate custody in 11 years. There

was a 35% decrease in indeterminate sentences from 2008 to 2009, and 20%

decrease in the number of life sentences. For 2009 also noted that 7% of all

juvenile receiving custodial sentences had no previous criminal history, while only

10% of adults had no criminal history

Alternatively 16% of juveniles and 47% of adults had more than three priors.

These statistics show that prison does not appear to deter, in fact it may seem to

increase offending, particularly for first time offences. Social learning theory can be

used to explain these phenomena.

Stalan (2002) notes that national opinion polls world wide show that the public has a

lenient view on penalties towards criminal behaviour. HT punitive public believes

that the justice system is too lenient towards crime, while the merciful public which

supports rehabilitation and non custodial sentencing believe is less harsh penalties.

Both when asked to choose appropriate sentences for a fictitious burglar display

preferences much more lenient that those employed by the courts (Roberts & Stalan

1997; Roberts, Stalan, & Hough, 1997) this view of leniency is internalised and

incorporated into the core beliefs of individuals, who form a young age believe that

when they often the punishment will be rather lenient for low level crimes. This belief

is further reinforced by alternative sentences such as fines, or compensation orders

given without any form or custody or community order. Offending behaviour will

persist as the individual develops.

Lord Taylor of Gosforth (1992) noted that custodial sentences fo up to 18 months

provided only limited public protection. Only a quarter of 12 months sentence would

be served, as release is entitled at 6 months, with a 90 day reduction for which the

prisoner will be on home curfew. The prisoner would the community after 3 months

and the prison service wont be able to address the offending behaviour

Custodial sentences are thought by some to further indoctrinate the offender into the

criminal world. Increasing custody rates bring more people into prison and detention

centres, the stigmatizing aspect of sentencing looses its effect (Nagin 1998). With

rehabilitative programmes such as community volunteer work, and victim mediation

unable to be administered to evenly, cognitive distortions, moral disengagement and

anti social behaviours are shared and reinforced while their old views are even

further reinforced. (Buksttel Gendreau, Goggin & Cullen, 1999;)

Rehabilitation

The other important function of punishment is rehabilitation, which is closely

correlated to deterrence. Blackman (1995) notes that punishment only trains what

not to do, unwanted behaviour must be replaced with an appropriate one.

he Social Exlusion Unit (2002) identifies the following areas as the most common

needs to be met by rehabilitation: a) Needs assessment— identify the offenders

needs and classify the type of intervention needed. b)Education—address

educational deficits c)Behavioural and cognitive skills programmes— challenge

offending behaviour and offending related risks. C) Vocational training—

transferable recognised skills to increase prospects of employment on release. d)

Work— give prisoners experience of the working day and increase prospects of

employment on release. e) Resettlement— to provide assistance to prisoners in

finding accommodation and employment after release.

For those on short term sentences, very little is offered in the way of

rehabilitation. Adults often serve sentences in local prisons where overcrowding

makes any rehabilitative programmes largely impossible. Those in short term prison

as well as youths serving short sentences in detention or training centres the Social

Exclusion Unit Report (2002) notes that there currently rehabilitation regimes

specifically designed to meet the their rehabilitative needs as are not in custody long

enough for rehabilitation programmes to make a difference. Currently the

stipulations that would come with community orders and supervision on release

would offer more in the way of rehabilitation.

To accommodate those on short sentences, behavioural programmes,

particularly drug and alcohol rehabilitation, educational and vocational programmes

should be made available while in custody with links for continued involvement even

after release

Offenders serving long term sentences have the chance to reap the full benefits

of rehabilitative programmes. Although overcrowdings, does hinder the

effectiveness and timeliness in which the aforementioned areas can be attended too

Any prisoners have experienced a lifetime of social exclusion so id 9 key factors that

influene reoffending:

Education

Employment custody to wor initiative - assisting prisoners to gain employment on

release and have access to accommodation. This is through basic skills and

vocational training in prison, connecting them with job or taining places nd

accommodation on release.

Drug and alcohl misuse

Mental and physical health

Attitudes and self control

Institutional and life skills

Houseinf

Financial support and debt

Family networks.

Report noted that offending behaviour programmes could reduce reconviction by

14%

RAPt Alcohol and Drug Addiction Project can reduce reconviction by 11%

Note that overcrowding does hinder the rehabilitative progress of the programmes

movement of prisoners and the gap between the number of prisoners and spaces

available make I difficult to provide sufficient positive activity for enough prisoners

Purposefull activity is carious activities including time spent at work, education,

training, physical education and other activities such as offender behaviour

programmes.

With increased population looking now no longer at hours of activity delivered,but

reflectipon of positive poutcome for prisoners prior to and after relase.

Argue that lack of attention paid to prisoners during short stay in prison together with

lack resettlement services or social support following release increases their risk of

recidivism.

Short tem is anyone less than 12 months often constitute the majority of imprisoned

each year. 20009 64%, these tend to have higher conviction rates than other

offender s and are responsible for the majority of crimes (The Halliday Report)

Form a rehabilitative view point they are a challenge as they have a wide range of

offending motives but most critically relating to drug and alcohol abuce, employment

and accommodation. With many having significant educational and behavioural

needs deficiencies.

Majority of short term held in local prisons that are the most over crowded, with local

prison serving as little more than containment unit rehabilitation is largely

unavailable.

has noted that in adition to little rehabilitative work there is little practical support

awarded to them before and after. Often justified on the grounds that little can be

done in the short time frame.

Recommendation os special course intensive in basic education and drug treatment

that can be completed while in cusdody, ability to commence long term education,

vocational and treatment programmes in prison directly linked to programmes

available in the community. So as to allow them to continue the programmes after

release .

Longe term offenders and offending behaviour programmes

Home office findings for 2003 note mixed results in that no difference in reconviction

rates for prisoners who participated in Enhanced Thinking Skills or Reasonins and

Rehabilittation programmes between 1996 and 1998. Study from 2002 showed

reduced rates for the same programmes between 1994 and 1996. As

Conclusion

Custodial sentences shall continue to be a facet of the criminal justice system. The

benefits of prison and detention as a punishment far outweigh the disadvantages.

We have seen that for the most part both short and long term sentences meet most

of the functions of a punishment. From a retributive stand point both sentences place

the offender in a position to take responsibility for their actions. Restitution in the

form of compensation as it does not hinge directly on the sentence length itself, offer

the same gains for both types of sentences. Where they differ are largely in the

rehabilitative, incapacitative and deterrent aspect. Where incapacitation ins

concerned short term scentences only remove the offender form the community for a

limited period of time, during which he he is exposed to an invironment where his

offending behaviour, is not addressed before release into society with the same

bleifs attitudes and behaviours he had before. Long term sentences are

incapacitated for a longer period of time where by their offending behaviour can be

identified and addressed, with steps taken to rehabilitate and deter them form further

offending. It would be in the best interest of the criminal justice system to remove

short term sentences entirely, replacing them with community orders, backed up by

long term sentences, should the conditions of supervision not be met

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