The main theories of sentencing linked to the diff

By looking at the theories of sentencing and the different types of sentence available it is important to understand what types of activity are regarded as criminal. In general criminal behaviour is defined by law and for which the state will bring court proceedings resulting in punishment of the criminal.

An important question is, why some antisocial behaviour is criminal whilst other antisocial behaviour just results social disapproval. An often-used example is that murder is a criminal offence, but to kill somebody in war is not a chargeable offence. Often the opinion of a society concerning criminal behaviour is changing with time. For example marital rape was not defined as unlawful until it was challenged in the House of Lords in 1991 (R v R).

Whenever a criminal offence has been committed and the offender is found guilty, it is up to the judge to find a proportional sentence to punish/rehabilitate the offender. When judges or magistrates pass a sentence they not only look at the sentences available, they also have to consider what they are aiming for with the sentence the give. In general the aims of sentencing are divided into six different categories: retribution, deterrence, denunciation, incapacitation, rehabilitation and reparation.

Retribution is the theory that the offender deserves punishment. Retribution does not seek to reduce crime or the offender's behaviour. There are several basic features upon which the idea of retribution is based.

It contains an element of revenge (an eye for an eye), as it requires that the severity of the punishment is proportional to the amount of harm that has been accused. Rationalised it justifies the death penalty as punishment for murder (e.g. USA).

Another important feature is that the sentences passed should be consistent for the same type of offence. Nowadays, having tariff sentences solves this, which allows the judge only to impose a penalty within the tariff range. This system is more common in America, where some states have a set tariff for every offence.

Newly, minimum sentences were introduced in England with the Crime (Sentence) Act 1997 for drug dealing (class A), repeated burglary and there is also now an automatic life sentence for those who commit a second serious offence.

Deterrence is divided into general and individual deterrence. The theory justifies a punishment in order to discourage the offender and other people from committing the particular offence or even other offences. Deterrent sentences include custodial sentences (imprisonment), suspended sentences or a heavy fine. In general this theory does only work if the media is attracted to the process and reports about it. To support general deterrence judges often impose severe sentences as a warning to the population. Often this occurs when there was a sharp increase in a particular type of crime.

The theory of deterrence is often criticised, as in practise it has not always proved to be true. The success is questioned and doubted by many surveys. For example the Government Social Survey by Willcock and Stokes (1965), which was based on interviews with young men between 15 and 22, came to the following result. Interviewees answered the question, what they would fear most from a court appearance with: "what my family would think about it" (49%), "the chance of loosing my job" (22%), "publicity and shame of having to appear in court" (12%) and only 10 % said "the punishment that I get".

Individual deterrence is the aim to make a punishment to the offender that is sufficiently unpleasant to ensure that the offender will not re-offend in future. Statistics show that a custodial sentence does not appear to deter as 55 per cent of adult prisoner are reconvicted within two years of release. Even more significant are the figures of young offenders. Home Office research in 1994 revealed that for male prisoners, 82 per cent of those aged 17-20 re-offended within two years of being released, while those aged 15-16 was even higher at 92 per cent. But it has to be considered that custodial sentences for young offenders are only passed, when they repeatedly offended and therefore the figure of a reconviction is logically higher.

In conclusion it is questionable if a long prison sentence or a heavy fine is preventing crime. It seems not to be proved as most of the released offenders are reconvicted and professional criminals do not fear a high prison sentence. On the other hand there is a significant number of those who are not re-convicted (45 per cent). The effect of deterrence seems to influence potential offenders, but to prove this is almost impossible.

Denunciation is society's disapproval of criminal activity. The theory states that one important aim of sentencing is to indicate both the offender and to other people that society will not stand for the offender's criminal behaviour.

Lord Denning stated this in his written evidence to the Royal Commission on Capital Punishment: " Punishment is the way in which society expresses its denunciation of wrong doing: and in order to maintain respect for law it is essential that punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them." To apply to this theory any sentence is suitable.

Incapacitation is the concept of making the offender incapable of re-offending in order to protect the public. Again the most suitable sentence, if seen rationalised, is the death penalty or at least life imprisonment. Some countries, especially the Islamic states, follow this principle by cutting off the hands of thieves. In Germany judges are allowed to make an order of infertility for paedophiles and repeated serious rape.

In England the aim is reached by long prison sentences, but also with (in order to reduce prison population) Home Detention Curfews (CDA1998) and disqualifications such as from driving.

Rehabilitation: Rehabilitative sentences are imposed to reform the offender’s behaviour. The theory is aiming for individualised sentences and judges can make an order (only if the offender consents) to attend drug treatment schemes or similar establishments. They also can pass a suspended sentence hoping that the offender will rehabilitate during this time. The Criminal Justice Act 1991 states that a suspended sentence should only be given where the offence is so serious that an immediate custodial sentence would have been appropriate, but there are exceptional circumstances in the case that justify suspending the sentence.

There are also sentences available for youth offenders such as action plan, supervision and attendance centres orders. These are specially designed for youth offenders. The offender has to attend a given amount of hours and takes part in organised leisure activities and training to change his anti-social behaviour.

Reparation: The aim of reparation is to compensate the victim and/or the victim's relatives. The Criminal Justice Act 1988 s104 provides that the judge has to give reasons for not making a compensation in cases involving personal injury, loss or damage. There have also been some experimental projects to bring offenders and victims together, so that the offender may make direct reparation. But usually the reparation is made to the society as a whole by passing a Community Service Order (40-240 hours of community work). The Criminal Justice Act 1991 sets out the details in section 8-13. This act encouraged the courts to use the community sentences, which is reflected by a sharp increase in the following years.

Nowadays, community sentences make up almost one-third of all sentences imposed (28.8% in Magistrates' Courts and 27.6% in Crown Courts, Home Office Statistical Bulletin 21/99).

It is criticised that the number of hours of work is not enough. Other countries (e.g. Germany) which run similar schemes can impose much longer hours, which provides much more individualised penalties. In addition, this would solve the problem, that community sentences are often found too lenient.

To sum up, in praxis (as seen) these theories do overlap, complete and/or result of each other.

Almost every sentence contains several aims and effects including retribution, denunciation and deterrence as well as rehabilitation (up to a certain amount).

But in general, the English legal system, and its sentencing policy, seems to be based on the idea of retribution and deterrence. This can be interpreted into the fact that courts appear to sentence the majority of offenders to immediate custody or fine (55.15 per cent[1] in Crown Courts/Magistrates' Courts). Whereas community sentences make out just 28 per cent¹ of all sentences passed. Sir Frederick Lawton underlined this in an article in The Times, 27 August 1991: "If rehabilitation is impractical, deterrence useless and sentencing for the prevention of crime unacceptable, what should be the purpose of a prison sentence? Of the four classical reasons for imposing prison sentences only retribution remains..."

However, rehabilitation is especially considered when punishing young offenders as it is assumed that young offenders are more likely to reform. But it is questionable if this aim has always been reached successfully.

Furthermore, is it actually defendable and justifiable that we try to punish offenders with the aim to deter them and try to reform their attitudes and beliefs? In terms of public safety certainly yes, but, when looking at the individual itself, is it not beyond our rights? We certainly should make the attempt to punish them as they deserve it for the offence committed, but we still should not deny any help or guidance, which might be important for their own rehabilitation.

[1] Calculation based on the Home Office Statistical Bulletin 21/99