Episode 20 – Punishment: I Sentence You To Listen To This Podcast!

TRANSCRIPT

STEPHEN BOTTOMLEY

We’ve spoken about Crime.  Now we do Punishment (that’s a great idea for a book title, by the way)  [PARKER: But can it be shorter than Dostoevsky?].

STEPHEN PARKER

After an offender is found guilty of a crime, the next step is for the judge to impose a punishment, or to ‘sentence’ them.  In this episode we look at sentencing: what purpose it serves, the types of sentence that can be imposed, and the range of discretion that a judge has in deciding on a particular sentence.

STEPHEN BOTTOMLEY

Sentencing excites a lot of passion in the general public and the media.  When there is a news report about the sentence that a judge has imposed at the end of a criminal trial, some people may claim that the sentence is too lenient because it doesn’t ‘do justice’ or reflect the severity of the crime as they see it.

STEPHEN PARKER

In other cases, it might be thought that the law has come down too hard on the convicted person, given the circumstances in which the crime was committed. And sometimes there is a concern about consistency – that different sentences being imposed for the same type of crime and offenders are not being treated equally.

STEPHEN BOTTOMLEY

These differences of opinion reflect the fact that there is no pre-set moral formula for deciding the degree or type of punishment that a sentence should impose.  For good reasons, in most cases the legal system relies on the expertise and experience of judges to decide the sentence that is appropriate to each case.

STEPHEN PARKER

Criminologists point out that sentencing is a complex process. It requires balancing the facts of the particular case, any mitigating or aggravating circumstances, the offender’s criminal history, whether they have pleaded guilty or have been found guilty after a contested trial and, of course, the penalties that are prescribed for that particular crime. All this requires the exercise of judicial discretion.

In exercising that discretion, a judge has to be clear about the purposes that punishment is intended to achieve.  In the fields of criminology and jurisprudence it is generally agreed that there are at least four purposes that might be served when a sentence is imposed.

STEPHEN BOTTOMLEY

The first of these is retribution.  This is the idea that if a person breaks the law, they deserve to be punished. This is encapsulated in every day expressions such as ‘if you do the crime, you should do the time’ or, in biblical terms, the idea of ‘an eye for an eye’. Within the idea of retribution there are other aims, such as denouncing the offender’s actions and making them accountable for what they have done.

Sometimes retribution is described as giving the convicted person their ‘just deserts’, which ties ideas of justice to the imposition of punishment. This leads to the idea that punishment must be proportionate to the offence.

STEPHEN PARKER

The second possible purpose of sentencing is deterrence. By imposing a sentence for a crime, the law hopes to deter people from perpetrating the same type of crime in the future.  The sentence is intended as a signal about the likely consequences of engaging in that type of criminal behaviour.  This might be aimed at the broad population – called ‘general deterrence’, or at a particular category of people, such as company directors. This is called ‘specific deterrence’. 

STEPHEN BOTTOMLEY

A key component of the deterrence argument is that the punishment must impose a burden on the offender that outweighs any benefit they had hoped to achieve by committing the offence. The assumption is that a would-be offender, knowing what the law says, will think about the legal consequences of their intended acts before deciding whether to go any further with their actions.  The suggestion here is that offenders are rational thinkers who can carefully weigh the supposed benefits of crime against the costs of being caught.  

There is evidence that this is true of white-collar and corporate offenders.  We have noted in a previous episode that companies sometimes factor fines and penalties into their calculations as the cost of doing business.  But for other types of offender, such as the addict who steals to buy drugs, or the repeat offender who overestimates their ability to avoid police detection – a rational, deterrence-based strategy is less likely to work.

STEPHEN PARKER

Thirdly, another purpose of sentencing is incapacitation of the offender so that they cannot commit further crimes.  The death penalty is an extreme way to achieve this (in the 53 countries that still allow for capital punishment).  But imprisonment is the more common form of sentence– the aim is to protect the public by taking someone ‘out of circulation’ when it is considered that they are likely to re-offend.  One criticism of this rationale is that it means punishing someone for what they might do, rather than what they have done.

STEPHEN BOTTOMLEY

The fourth purpose is that sentencing should aim to support the rehabilitation of offenders to prevent, or reduce the possibility of them re-offending.  From this perspective, prison sentences are less favoured than options which seek to change the person’s behaviour or attitudes towards their criminal behaviour.  This approach can sometimes be found in the criminal law’s response to drug offences.

One form of rehabilitation is known as restorative justice. This takes the idea of rehabilitation one step further. Along with trying to change the offender’s future behaviour, restorative justice seeks to repair the harm that the offender’s action has caused.  There are different ways in which restorative justice can be put into effect.  Under one approach, the offender is brought together with the victim of the crime and perhaps their family, or members of the wider community, to collectively discuss what should be done in response to the crime.

STEPHEN PARKER

Criminal law systems in countries such as Australia and the UK contain elements of each of these approaches to sentencing.  At different times, one purpose may be favoured over others, depending on the type of crime, the politics of the day, and the attitude of the sentencing judge or magistrate.

So, what types of punishment can a sentence impose? Prison sentences readily come to mind, even though statistically they are the least commonly imposed form of punishment.  But the options are not limited to incarceration. Non-custodial sentences include fines and good behaviour bonds.

STEPHEN BOTTOMLEY

A fine is a court order to pay an amount of money which goes into the public revenue. A good behaviour bond is a promise (or ‘recognizance’) made to the court to do certain things such as pay money to someone, attend court at a later date, or attend drug and alcohol rehabilitation. 

Many jurisdictions allow for a ‘suspended sentence’, where a term of imprisonment is imposed but it is suspended for the duration of the sentence, and the offender is allowed to remain in the community under a good behaviour bond.

STEPHEN PARKER

Another sentencing option is a community service order, requiring the offender to complete a specified amount of unpaid community work, either supervised or unsupervised.

We can draw a distinction between these types of sentence and administrative penalties, such as parking fines.  This distinction is based on the idea that a sentence imposed by a court is a punishment that carries a sense of social or moral condemnation of the person’s behaviour, something we discussed in Episode 19 on Criminal Law. 

I sometimes feel the same way about people who don’t obey parking signs, but maybe that’s just me.

STEPHEN BOTTOMLEY

Sentencing involves parliament and the courts.  It is parliament’s job to pass legislation that defines the crimes and then specifies the penalties or sanctions applying to those crimes.  In most instances, this is done by prescribing the maximum level of penalty. It is then the judge’s job to decide what level of penalty to apply in a particular case, up to the maximum amount prescribed in the legislation.

There is a tension here.  Parliaments often want to guide and limit the scope of discretion that judges exercise.  Perhaps politicians want to avoid the accusation of being ‘soft on crime’.  On the other hand, judges want a level of autonomy in the exercise of their judicial functions, so that justice can be done according to the facts of the case.  This is a necessary aspect of the rule of law.

STEPHEN PARKER

Parliamentary guidance on sentencing comes mainly in three forms.  First, as we’ve said, there is the level of maximum sentence that is specified for an offence – a higher maximum gives a judge more room to exercise discretion.

STEPHEN BOTTOMLEY

Second, most jurisdictions have passed specific sentencing legislation, such as the Sentencing Act 1991 in Victoria, that sets out the general principles and processes that judges should take into account when deciding a sentence.

The Victorian statute, for example, states that the only purposes for which sentences can be imposed are: punishment that is just in the circumstances, deterrence of future crimes, rehabilitation of the offender, denunciation of the criminal conduct and/or community protection. The Act goes on to deal with sentencing for specific types of offences, such as murder.

STEPHEN PARKER

The third way in which parliament can affect the sentencing process is by specifying mandatory sentences.  The word ‘mandatory’ can refer to the length of sentence that is to be imposed or to the type of sanction (eg imprisonment).  In most instances, both of these are covered, so that a mandatory sentence will specify a minimum period of imprisonment that must be imposed if the accused is found guilty.  

A variation on this is where subsequent offences come within a mandatory framework; such as a “three strikes” rule where a fixed sentence is applied on the third occasion.

STEPHEN BOTTOMLEY

A key element of mandatory sentencing is that it reduces the scope for judicial discretion. The judge’s role becomes one of putting government policy into effect. This challenges an important aspect of the rule of law, which loyal listeners will recall we discussed in Episode 1.  The rule of law posits a separation of power between the courts, parliament, and the executive arm of government. By replacing judicial discretion with legislative prescription, mandatory sentencing undermines this principle.

STEPHEN PARKER

Mandatory sentences typically attach to violent crimes, and the usual justification is that this is necessary for the protection of public safety and for the deterrence of future crime. However, there is evidence that ‘one-size-fits-all’ mandatory sentencing regimes do not actually reduce offending, and they impose a greater public financial cost because more offenders are being detained in the prison system for longer periods of time.

STEPHEN BOTTOMLEY

Lastly, it is possible for either the convicted person or the prosecution (and in some cases, the Attorney-General) to appeal against a sentence.  The rules that govern the hearing of these appeals vary in different jurisdictions but generally, the court hearing the appeal can decide to leave the original sentence in place, or reduce or increase the severity of that sentence.

If the appeal court is contemplating a more severe sentence, then it must first warn the person and give them the opportunity to withdraw their appeal. This is sometimes known as a ‘Parker warning’, named after a 1992 case in the NSW Court of Appeal.

STEPHEN PARKER

The exercise of judicial discretion creates the possibility of these appeals.  Could AI provide more certainty, or at least assist a judge in evaluating possible sentencing outcomes? There is early research that suggests this could become the reality in criminal trials of the future – but it is early days.