For the law to be relevant, it must always be developing to reflect changes within societal thinking and ever-broadening scientific discoveries. The common law purposes of sentencing are the protection of society, specific deterrence of the offender, general deterrence of the public at large, retribution and reform or rehabilitation. If you are a philosophical determinist you would be of the view that people who offend do so not by their own choice, but by their own pre-dispositions. You may also find the purpose of retribution, therefore, futile, unnecessary, or even cruel. If one could eliminate the purposes of sentencing to just protection of society and rehabilitation, you may find that this paves the way for a more constructive criminal justice system. If the aim of specific deterrence was removed, this could potentially shift towards a bigger focus on rehabilitation and restoration. The abandonment of general deterrence, combined with a greater acceptance of developments in neuro-science, could create a system in which the public’s safety is tended to, an offender’s prospects of rehabilitation are increased, and their risk of recidivism is decreased. This would create a more efficient criminal justice system. Imagine if the Government had the ability to shut down gaols, reduce crime rates, save costs on maintaining prisons and provide offenders with real and lasting rehabilitative treatment with the money saved.
To see about the most recent sentencing reforms, check out our blog post here.
SHOULD WE REMOVE SPECIFIC DETERRENCE AS AN AIM OF SENTENCING?
Specific deterrence is the goal that intends to provide an offender with a sentence that is severe enough to deter them from committing another offence. This does not appear to be working; we are often confronted with some alarming statistics on this. A recent study has revealed that recidivism rates are unaffected by the types of penalty imposed.In fact, conversely, it was found that lengthy or repeated imprisonment tends to increase recidivism, according to Stephen J Odgers, in his 2018 publication of Sentence. Many reasons are speculated for this, namely that prison culture normalises criminally-oriented behaviours, reducing an offender’s ability to mould back into society as they are labelled a criminal as such, and because gaol fails to address the underlying issues that caused the offending behaviour. It is also not proffered that the actual experience of punishment is more effective at working as a deterrent than the general threat of punishment applicable to all potential offenders.
The removal of specific deterrence could make way for the following important reforms:
AN EMPHASIS ON REHABILITATION
Local evidence on rehabilitation is less conclusive, but it appears that specific forms of intervention may be able to reduce recidivism. A 2008 study by Weatherburn D et al, of the NSW Drug Court, found that those who completed the Drug Court program were 37% less likely to be reconvicted of offences than a comparison group. Most prisoners in NSW have previously served a sentence of imprisonment and there is little evidence for imprisonment improving prospects of rehabilitation. These are not promising statistics. It is also well known that many young people who have served in juvenile detention will go on to adult gaols.
RESTORATIVE JUSTICE IS ESSENTIAL
The Commonwealth Sentencing Act allows for orders to be made with respect to reparations which may be made, by way of money or otherwise, from an offender to a victim who suffered a loss directly because of the offending. This is not a purpose of sentencing, but restorative justice is a method of using sentencing for the purpose of repairing the harm caused by the offending behaviour and addressing the underlying cause of said behaviour. The process brings together the victim, offender, and if relevant, members of the wider community, to participate and collectively determine the appropriate sentence.
THE ABANDONMENT OF GENERAL DETERRENCE
There is no empirical evidence to support marginal general deterrence, i.e. that the greater the potential punishment, the stronger the desire to avoid being subjected to it. A logical reason for this is that there is a lack of communication of a threat. The lack of communication being to the general public and more specifically, people at risk of offending. The threat being one of ‘punishment’ by way of serious prison time. If sentences are increased in some unrelatable or unquantifiable way, this is unlikely to be reported on, and more unlikely to be read if published. For a look into why or how perceptions by the public of sentencing procedures become skewed, check out our article. General deterrence in its current form does not effectively consider that most people who engage in criminal conduct do so for a myriad of reasons; from biological predispositions, psychological personality, and circumstances surrounding them such as relative poverty or political conflict. General deterrence makes the mistake of viewing criminals as having made a conscious choice to commit a crime based on a rational cost/benefit calculation they have conducted. That is more likely to be true for matters of white-collar crime, where the offender is a calculating, mathematically savvy person aware of risk analysis.
COMPARISON WITH A FOREIGN JURISDICTION
It has been well documented in the media that in recent years prisons in the Netherlands have been consistently shutting down in favour of rehabilitation centres that have been shown by data, to work. Old prisons are now even being used as housing for refugees. People imprisoned for the most extreme offences, such as murder, have become fully reformed, and are being treated with simple means, such as gardening or learning to cook. Their prisons look completely different to what we have in NSW, with more open, outdoor and yard space. The issues which caused or led the offender to engage in criminal activity in the first place are properly addressed. For example, if a drug addiction or some other addiction drove the prisoner to steal, they would treat the drug addiction. Another example is if the offender has debt troubles, they would receive counselling for that. Offenders are also given the opportunity to return to the workforce much quicker and contribute to society due to an ankle device monitoring system they have.
THERE IS AMPLE POTENTIAL FOR JUSTICE TO BE SERVED WITH HEALTHY OUTCOMES
There clearly needs to be an overhaul of the system on a big scale; the failures of our current system to address issues that cause offending such as addiction, poverty, and mental illness, requires us to take a step back and evaluate it, from a basic level. Looking at the purposes of sentencing is a great place to start and can really allow reforms to be implemented from the perspective of what long-term goals we would like our system to be achieving for people trapped in the criminal justice system cycle. Future developments in neuro-science need to be considered as a matter of priority. Useful studies have been underway about genetic predispositions, addiction, the impact of chemical imbalances in the brain, and how criminal behaviour emerges from compulsions. The science is still new, and it will take time for the law to accept and implement such discoveries. It is best to be prepared for the moment this occurs, however, by ensuring offenders now have access to schemes when being sentenced that best suit their rehabilitative needs.
For information on the sentencing process in its current state, please see the discussion here.