Thursday, 14 January 2010

The conservative's policy on honesty in sentencing

I posted the following on my own blog yesterday and wondered what other PhD students thought:

The Conservatives have said that when/if they win the next election they will introduce ‘honesty in sentencing’ which will ‘ensure judges spell out clearly the minimum and the maximum time a prisoner can expect to serve, depending on their behaviour and whether they make “reparations” for their offences.’ I don’t really see how this will change things or whether it is likely to improve the public’s perceptions of sentencing patterns. In my opinion the public needs to know that the judiciary are not out of touch with the rest of the country and that several studies have shown that the public tend to sentence in line with, or more leniently, than judges. If this is what the Tories are worried about- which they should be- then they are going about it all wrong.

Firstly, when a judge sentences someone to life or an indeterminate sentence for public protection (IPP) they are given a tariff which is, in effect, the minimum amount of time they will spend in prison and is for punishment purposes- after this point prisoners must prove that they no longer represent a risk to the community before they get released which seems fair enough to me (although there were major problems with IPPs when they were introduced with people being given 14 day tariffs but spending years inside- fortunately this has been rectified). The Tories’ proposal won’t affect the amount of time the more serious offenders spend inside, nor will it improve/increase the knowledge the public has in terms of when that person will get released because this is based on dynamic matters of dangerousness and risk rather than static (in the sense that it is decided at the point of sentence) matters of punishment and retribution. With regards to less serious offenders who are given determinate sentences this will change things but… it’s not like judges make the release date up when they sentence someone- it is worked out based on a variety of factors such as length of sentence, time already spent on remand or HDC as part of their bail conditions, etc. Once the magistrate has passed her/his sentence then anyone with a good knowledge of the law can work this out. Okay, so the majority of members of the public do not have the knowledge to work this out but neither do the majority of the public get their information about sentences directly from the horse’s mouth- it comes from the media who do (or should) have the knowledge (if not the impartiality to do it correctly) to work these matters out. The public will continue to learn what the minimum amount of time someone will spend in prison is through their normal channels- i.e. the media and so the Tories proposals will do nothing, per se, to change things in relation to lower level offenders. It might make life a bit easier for offenders and their families because they will know, right from the word go what situation they are in but I suspect that offenders’ needs aren’t at the heart of this policy.

Setting out the maximum amount of time an offender will spend in prison is already done with determinate sentences although admittedly an offender will rarely (if ever?) spend the full period in prison. I don’t know why the Tories want to, in effect, put a limit on the amount of time offenders who are given life or an IPP spend in prison by spelling this out in court. I also don’t know why behaviour is the thing they mention that will be used in this assessment. The judge cannot know all permutations of ‘bad’ behaviour a prisoner will get up to. Will they have to quantify it by saying something like, “if you fail to gain enhanced prisoner status and accrue 3 adjudications in the first year you will have to spend an extra 3 months beyond your tariff in prison?” I very much doubt it. I would also have thought that the Tories would be much more interested in the risk that someone poses when they eventually get released and let this be the deciding factor in when they are released. But, then, as mentioned above, risk is a dynamic concept- it can’t be measured at the point of sentence to determine release because it changes. It just doesn’t make sense.

The judiciary can already spell out in court what reparations an offender must make. This can be done by giving the offender Unpaid Work so they have to do some kind of Community Payback (wearing bright orange jackets as they do so). All fines and convictions also have a mandatory victim’s surcharge which also means offenders make reparations in some way. How else, I wonder do the Tories propose, that offenders make reparations- are they planning on introducing restorative justice more formally into the adult criminal justice system? If so, good on them!

The Tories proposals, therefore, appear to be somewhat redundant in the grand scheme of things although, on the face of it, they do probably seem appealing to the majority of people and so this move can be seen as purely populist tactic. Fair enough, populism wins votes but it’s just such a shame that populism looks set to become (or, rather, remain) a key factor in criminal justice policy if/when the Tories regain power. Moreover, from a normative perspective, what does this policy tell us about the Tories’ approach to risk- the ‘new’ paradigm of penal policy. Risk is, as we have seen, dynamic but this dynamism doesn’t seem to fit with the Tories preferred form of populism- are we going to see a retreat from risk measurement and management in guiding sentencing towards more ’simple’ to measure and more staticfactors such as retribution and just deserts- as we saw under the last Tory government in the Criminal Justice Act 1991?

Any comments?

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