Reforming Community Penalties

193 Pages·2013·4.132 MB·English

by  Rex, Sue

WILLAN
PUBLISHING
Reforming Community Penalties
To J.C. and J.C
Reforming Community
Penalties
Sue Rex
WILLAN
PUBLISHING
Published by
Willan Publishing
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© Sue Rex 2005
The rights of Sue Rex to be identified as the author of this book have been asserted by her
in accordance with the Copyright, Designs and Patents Act of 1988.
All rights reserved; no part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without the prior written permission of the
Publishers or a licence permitting copying in the UK issued by the Copyright Licensing
Agency Ltd, 90 Tottenham Court Road, London W1P 9HE.
First published 2005
ISBN 1-84392-114-6
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Project managed by Deer Park Productions, Tavistock, Devon
Typeset by TW Typesetting, Plymouth, Devon
Printed and bound by TJ International Ltd, Trecerus Industrial Estate, Padstow, Cornwall
Contents
List of tables vii
Acknowledgements viii
1 Introduction: researching communicative penal theory 1
Why penal communication? 1
Insights from stakeholders 2
Outline of book 4
Conclusions 6
2 Communicative theory - origins, evolution and application to
communicative penalties 7
Introduction 7
A recent history of community penalties 8
Blurred boundaries: a 'customised' community order or custody
plus/minus 12
Re-framing punishment as communication 15
Applying a communicative perspective to community penalties 19
Restorative justice 20
Replacing or reforming criminal justice? 24
Moving from theory to communication on the ground 26
Conclusions 27
Notes 28
3 Seeking stakeholders' views of punishment 31
Introduction 31
I. Assessing public views 31
II. Collecting stakeholders' views 41
Conclusions 51
Notes 51
4 Prioritising penal aims 55
Introduction 55
I. Reconciling proportionality and crime prevention in theory 55
II. Understandings of proportionality on the ground 64
Conclusions 75
Notes 77
Reforming Community Penalties
5 Penal messages 80
Introduction 80
I. Overall aims of punishment 80
II. Sentencing as communication 94
Conclusions 106
Notes 107
6 Responding to punishment 109
Introduction 109
I. Responding to the penal message 109
II. Leniency for the remorseful offender? 123
III. The efficacy of the message 125
Conclusions 129
Notes 132
7 Towards a framework for community penalties 133
Introduction 133
Punishment as a communicative enterprise 135
Balancing retribution with crime prevention: what weight
proportionality? 140
Using community penalties to communicate 143
A communicative framework for community penalties? 147
Conclusions 151
Notes 152
8 Conclusions 154
Introduction 154
Communicative penalties - a summary 154
Obstacles and opportunities 158
Using community penalties to restore 161
New forms of custodial and community provision 162
Conclusions 164
Notes 164
Appendix: The questionnaire 165
References 172
Index 181
vi
List of tables
3.1 Characteristics of questionnaire respondents 47
4.1 Prioritising punishment: views from questionnaire respondents 64
4.2 Views of proportionality 69
4.3 Views of offender-related factors 70
4.4 Other factors 72
4.5 Offender-related mitigation 74
5.1 Moralising 81
5.2 Exacting recompense 82
5.3 Normative aims: mean scores 84
5.4 Stopping further offending 85
5.5 Variations on reform 86
5.6 Instrumental aims: mean scores 88
5.7 Purposes of different orders 90
5.8 Normative messages 96
5.9 Normative messages: mean scores 97
5.10 Instrumental messages I 99
5.11 Instrumental messages II 99
5.12 Instrumental aims: mean scores 100
5.13 Messages conveyed by different orders 104
6.1 Accepting behaviour was wrong 116
6.2 Taking disapproval on board 116
6.3 Avoiding future offending 120
6.4 Offering recompense 121
6.5 Responses: mean scores 122
6.6 Response justifies reduced sentence 124
6.7 How many offenders 'respond' to penal message 125
7.1 Levels of confidence in different sanctions 146
Acknowledgements
First of all, thanks must go to the Economic and Social Research Council
whose funding of my research fellowship made this project possible. Nor
would the work have been viable without the contribution of a
considerable number of people in the magistracy, Magistrates' Courts
Service, Magistrates' Association, Probation Service and Victims' Sup­
port who commented on draft interview schedules and questionnaires
and helped to arrange interviews and distribute questionnaires. Staff at
the Institute of Criminology, particularly in the Library and General
Office, also helped with the piloting of questionnaires and gave me a
great deal of support during my fellowship.
I am most grateful to those people - magistrates, those working in
probation and community service and those under their supervision, and
victims - who willingly gave me their time and insights in interview and
by completing questionnaires. I am also indebted to Loraine Gelsthorpe,
both for her considerable support during the project and for commenting
on draft interview schedules and questionnaires, and on a number of
versions of draft chapters. Antony Duff was immensely helpful in
offering detailed comments on draft chapters, as were Anthony Bottoms
and Andrew von Hirsch - both in commenting on chapters and through
more general discussions that helped formulate my ideas and analysis.
Chapter I
Introduction: researching
communicative penal theory
The core subject matter of this book concerns community penalties
(non-custodial options that restrict the offender's liberty in some way). It
arises from a conviction that instability, if not confusion, about the
purposes of community orders and their place in the sentencing
framework has been partly responsible for enabling custody to flourish
during the last decade as the only punishment with real public
credibility. In undertaking the research reported in the book, in which I
sought the views of people with a particular interest in criminal justice
about the role of community penalties, my aim was therefore to consider
how the theoretical underpinnings for community penalties might be
strengthened. I hope that, in turn, this will aid their development in
policy and practice so enabling them to command greater support as
punishments in their own right. In the book, I consider the implications
of my findings for the kind of role that community penalties might be
expected to play and how they might best be developed to perform that
role, taking account of recent research and policy and practice initiatives
relating to community-based disposals.
Why penal communication?
In reviewing the theoretical framework for community penalties, I turn
to the ideas put forward by von Hirsch (1993) and Duff (2001) in which
punishment as communication is a central feature. My interest in the
theories of these two writers has been prompted by their attempt to
reconcile at the theoretical level two functions that undoubtedly coexist
in community penalties, but coexist in considerable tension. One
function is for the sanction to act as a retributive punishment 'deserved'
by the offence; the other is for it to reduce the likelihood that the