Compare and Contrast the Advantages and Disadvantages of Custodial Sentences.

Under What
Circumstances Should Each be Used and How Might their Advantages be Maximised and their
Disadvantages Minimised.
Swayne Leo Hosein-Cadogan

Teesside University
Compare and contrast advantages and disadvantages of custodial sentences,
giving suggestions on how to maximise strengths and minimize weaknesses.

Hi Leo,

Good reference list, all in full APA format, however, not all references within
the text are – please refer to the APA Manual (6th Ed.) for further information.
Good use of sub-headings throughout, although one at the beginning would
have been beneficial. There are minor grammatical errors throughout (e.g.
missing or incorrect use of full stops; use of semi-colon instead of a colon
etc). You talk about the Criminal Justice System Northern Ireland, then in the
next sentence (p.1), you introduce the Criminal Justice Act (2003), is this
Ireland or England – what is the Sentencing Council – which country? You
must make these things clear to the reader. You introduce the various
sentences starting on p.2, however, these are very descriptive and you do not
seem to explain what the advantages and disadvantages are of these
sentences. Page 6 contains a lot of very short sentences, please use longer,
more meaningful sentences. In addition, the first sentence under the heading,
‘Retribution’ is incomplete. You should avoid using abbreviations like ‘id’ (p.
11) in academic writing. The bullet points on pp. 11-13 are inappropriate.
Overall, I felt that you did not answer the question sufficiently and much of the
essay was very descriptive with no critical analysis.

Overall, a limited understanding in key areas of knowledge relevant to the

work with insufficient evidence of ability to integrate and analyse concepts to
provide a valid discussion. You have 4 weeks from the date of the marks
being released in which to resubmit this piece of work.

Punishment under law is the authorised imposition depravation of freedom

privacy, or any other goods a person has a right too; or the imposition of special
burdens because they have been found guilty of some criminal violation. Typically
though not invariable involving harm to the innocent” (Stanford Encyclopaedia of
Philosphpy ) Punishment serves five major purposes; retribution, restitution,
incapacitation, deterrence, and rehabilitation (Libman 2009;) Retribution— offenders
are made to take responsibility for their actions, they get their ‘just deserts’ and are
punished/sanctioned based on the seriousness of their actions. Restitution—
offenders are required to compensate the victim(usually financially) and society for
the harm caused. Incapacitation—offenders are removed from society to prevent
them from committing further harm or menacing society. Deterrence—offenders are
deterred/discouraged him or her from committing future offences and he serves as
an example to deter others from committing offences. Rehabilitation— offenders are
reformed into law abiding citizens fit to be re released into society.

Custodial sentencing is one whereby a person’s liberty is restricted by a prison

sentence or a stay in a youth centre.(Criminal Justice System Northern Ireland)
Custodial sentences are the most severe penalties available to courts. Under the
Criminal Justice Act 2003 they can only be imposed for offences so serious that this
is the only justifiable penalty for the offence, or to protect the public form violent and
sexual offenders. The sentencing council distinguishes three types of custodial
sentences; determinate indeterminate and mandatory life sentences (Sentencing
Council).

Determinate Sentence

Determinate prison sentences— this is the most common type of custodial

sentence, whereby the court sets a fixed length for a prison sentence. The time set
will be the maximum time the offender will spend in prison; however he is unlikely to
spend the entire time in prison (Sentencing Council). Magistrate’s court cannot
sentence more than 6 months or less than five days for a single offence, no more
than 12 months for 2 or more either-way-triable offences, to be served consecutively.
Minimum of 7 years for person over 18 convicted of trafficking Class A Drug, with 2
or more previous similar convictions. Three years for a third domestic burglary,
unless unjust in all circumstances (Chapman and Niven, 2000)

With young offenders introduced the Detention and Training Orders as. These
are combined sentences with half the term served in custody and half served under
supervision in the community (Youth Justice Board).
Anyone 12-17 years old can receive a DTO form either Youth Court or Crown Court
for any imprisonable offence serious enough to warrant custody under section 1 of
the Criminal Justice Act 1998. However for those 12 to 14 the court must be
convinced that the defendant is a persistent one. Orders can be between four to 24
months, and must not exceed the maximum terms that would be imposed on an
adult for the same offence.

A Section 90/91 this can only be imposed by the Crown Court for offences that
would warrant a 14 year conviction of an adult offender. For murder the mandatory
life sentence falls under Section 90 of the Powers of the Criminal Court Act 2000,
other serious offences fall under Section 91. The maximum offence for a youth must
match the maximum for an adult (Youth Justice Board).

Youths may be housed in secure children’s homes, secure training centre or youth
offender institutions.

Secure children’s homes are run by local authorities for offenders aged 12-14, girls
up to age 16 and boys 15-16 who are assessed as vulnerable.

Secure training centres are private run housing 17 year olds, focused

Youth offender institutions (YOI) are private and prison run for 15-21 year olds,.

Each provide tailored programmes for educational and vocational training,

healthcare and mental health and social care (rehabilitation) onsite. .

Indeterminate prison sentences—sentences where the court sets the minimum

term of imprisonment an offender must serve before being eligible for release by the
Parole Board. There are two types: imprisonment for life and imprisonment for public
protection

Imprisonment for life is imposed when the offender has committed a serious
offence for which the maximum penalty is life imprisonment (or at least 10 years), the
court’s opinion is that the offender poses a significant risk of serious harm to the
public, and believe that the seriousness of the offence justifies imprisonment for life.

Imprisonment for public protection(IPP) — imposed where the offender is

convicted of a serious sexual or violent offence punishable by imprisonment for life
or detention for 10 years or more, courts are of the opinion that the offender poses
significant risk to the public, and has a previous conviction (such as kidnappings,
manslaughter, or others covered by schedule 12 of the Criminal Justice Act 2003)

Mandatory Life sentence— imposed for any offender over the age of 10 guilty of
murder. Youth sentence is termed Detention at Her Majesty’s Pleasure (under
Section 90 of the Powers of the Criminal Court Act 2000) Courts set a minimum term
the offender must serve before they can be considered for release by the Parole
Board, based on guideline in schedule 21 in the Criminal Justice Act 200 (eg. Murder
with a knife or other weapons the starting point is at 25 years).

The Crime Sentencing Act 1997 stipulates that unless the courts fine exceptional
circumstances, the minimum sentence be automatically imposed for repeat offenders
of more serious offences. This includes mandatory life for anyone over 18 convicted
of serious offence, with a prior conviction for a similar offence. Serious offences
include: rape, murder, attempted murder, violent crimes, manslaughter, and armed
robbery.

Youths guilty of murder committed under the age of 18 are sentenced to “detention
during her Majesty’s Pleasure” under the Children and Young Person’s Act 1993.

Persons under 18 convicted of other serious offences besides murder, which would
still warrant a life sentence for an adult, can be sentenced to ‘detention for life’

Release

For sentences under a year the offender will be automatically released after serving
half the sentence, with no obligations for the rest of the sentence. However, should
they commit further offences during the remaining time the unexpired part of the
sentence could be added to any new sentence imposed

All prisoners are eligible for release at the half way point in their sentence; they are
considered to be “at risk” and as such are often given compulsory supervision until
the end of their sentence. Further convictions before the original sentence has
expired results in the court reactivating all or part of the original sentence, in addition
to any new sentence imposed.

Inmates convicted of less than 12 months are released automatically with no

compulsory supervision (Automatic Unconditional Release, AUC), youths however
may be given statutory supervision for a minimum of three months or until their 22 nd
birthday, whichever comes first.

Those sentenced between 12 months to 4 years are released on licence, subject to

compulsory supervision up to the three quarters point of the sentence (Automatic
Conditional Release, ACR). Some sex offenders are supervised for the entire
remaining length of the sentence under the direction of the sentencing judge.
Beaching the licence results in a recall to prison especially for sex offenders.

Those sentenced to four years or more are considered by the Parole Bpoard
annually until two thirds of the sentence is served. At the two thirds point those who
have not been paroled are automatically released on licence. Those serving an IPP
may be released on an IPP licence; they can be recalled to prison if they owe a risk
to the public. After 10 years (and then every subsequent year if unsuccessful)
offenders can apply for their licence to be cancelled, this decision is at the discretion
of the Parole Board.

Under the Crime and Disorder Act 1998, prisoners sentenced to custody for three
months or more, but less than 4 years, are eligible for release on Home Detention
Curfew (HDC). Providing they are aged 18 or over at the time of release, they are
can be released up to two months early, but must be at a specific address for at least
9 hours a day and are monitored via electronic tag. Eligible persons must pass a
risk assessment and must have a suitable address before they will be granted
release, with the final decision being made by the governor. Those required to
register under Part 1 of the Sex Offenders Act 1997, those convicted of a curfew
order, and those facing deportation do are not eligible for HDC

Prisoners on HDC can be recalled if they breech their curfew, present ad anger to
the public, if their circumstances change (like losing their accommodation), if they
are charged with a new offence, or if monitoring becomes difficult (eg. No suitable
constant electricity supply)

Lifers are not entitles for full release but may be considered for release on licence
whereby they are required to report to a probation officer. After a period of time
these reporting conditions may be lifted if the individual demonstrates no longer
necessary.
For mandatory lifers release is only authorised by the home secretary on
recommendation of the parole board after consultation with the chief justice and trial
judge.

Discretionary lifers courts can specify a term after which they can be eligible for
release. The Home Secretary must refer their case to the Parole Board (the
Secretary cannot reject a recommendation by the Parole Board) if they so believe
that custody is no longer necessary for the public’s protection the Parole Board can
direct the Home Secretary to release the prisoner.

Non custodial measures

These are further measure which although not custodial in nature are often imposed
alongside custodial custody or as part of conditional release form custody Home
Affair Committee 2002).

Community orders are regarded as penalties in their own rights and no longer just
alternatives to custodial sentences. They are imposed if the offence is serious
enough to warrant penalty, or to those released on licence or supervision. Such as
unpaid work, supervision, activity, curfew, exclusion, residence and others, alone or
in combination with each other.

Custody minus is used where an offence justifies no more than two years
imprisonment can be suspended for 6 months to two years subject to the completion
of a community order.

Custody plus is a sentences of less than 12 months that include a short period of
custody followed by a period of supervision and rehabilitation requirements in the
community.

Intermittent custody is a prison sentence to be served on weekends combined with

restrictions or obligations during the period in the community

Combination Orders are those combining probation supervision with a community

order for all offenders over the age of 16. Probation (maximum three years,
minimum 12 months) must last at least as long as the community order (maximum
100 hours, minimum of 40 hours).
Compensation orders can be imposed with any sentence (or on its own) in cases
involving death injury or loss, courts must give reasons where no orders are given.
Magistrates Court can order a maximum of £5000 per offence, the Crown Court has
no limit, not the means of the offender must also be considered.

This essay will examine the advantages and disadvantages of custodial sentences,
in relation to how well they meet the functions of punishment. Suggestions will be
made on ways in which weaknesses can be minimized, strengths maximised for the
sake of this essay custody sentences under 18 months shall be referred to as short
term sentences, and those longer an 18 months shall be referred to as long term
sentences

Retribution

Based on lex talons of biblical times that calls for “an eye for an eye, a tooth for a
tooth, and a life for a life” (Hudson, 1996). Punishment must be proportional to the
crime.

All forms of custodial sentences are retributive in nature. The criminal Justice act
2003 stipulates that custodial sentences are for offences so severe that custody is
the only justifiable penalty. Conviction imposes responsibility for the crime and
custody becomes the just deserts, with the length of sentence

Zehr (2005) maintains that retribution focuses on assigning blame then appropriately
punishing with prison being the normal route. The criminal evil is curbed by harsh
measures, which sends the message that those who offend deserve vengeance.
This Zehr argues confirms the criminal outlook as many offenders see themselves as
punishing others for some perceived or real wrong

Some advocates claim a moral link through the concept of censure—holding the
offender accountable for their conduct of which society disapproves (von Hirsh,
1994). Punishment becomes a question of accountability and responsibility for
actins deemed unacceptable Prison becomes an expression of condemnation (Bean,
1981).

In instances of short term sentences, compensation orders and community orders on

issued as part of release licence can strengthen the retributive (censure) aspect.
Incapacitation

Custodial sentences in keeping with utilitarian theory remove the offender form
society, thereby protecting the public. The incapacitation effect of prison applies
regardless of deterrence, rehabilitation or reformation of the offender (Morris, 1994).

Research in to the deterrent effects of prison are often highlight prison’s

incapacitative strength, with many researchers arguing that this is the primary reason
for the continued use of imprisonment be it long or short term sentencing (Gendreau,
Goggin & Cullen,1990;)

Indeterminate sentences have the most effective incapacitative effect of custodial

sentencing. With a minimum of 10 years for a discretionary life sentence, offenders
are guaranteed to be securely separated from society for that time period. This can
be increased with the extended sentences, whereby additional time is added to the
minimum time that must be served before eligibility for release. When released on
licence the promise of recall to prison for breach of the contracts is a further promise
of future incapacitation.

Automatic unconditional release does limit the extent of incapacitation. Without

restrictions or supervision, except in the case of young offenders incapacitation ends
with

United Nations (2005) notes that prison effect to incapacitate only works to the
extent of the sentence length. Those returning to the community on automatic
unconditional release, with the exception of youth offenders do so with no
supervision or restrictions, and little or no reintegration skills, they are more likely to
re-offend than those issued alternative sentences.

Those granted automatic condition release will still have supervision for up to three
quarters of their sentence, with other limitations such as curfew’s and limitations
imposed on community and combination orders or HDC, this may offer some
continued form of incapacitation.

The success of incapacitation supports the notion that increasing the prison
population through longer harsher sentences will lead to a reduction in crime,
however, Piquero and Blumstein (2002) estimate that for a one percent decrease in
crime there would have to be a five percent increase in prison population. This
would lead to severe overcrowding and incur massive cost to the government. This
in turn can have detrimental effect on the deterrent effect of prison (Gendreau
Goggin &Cullen, 1999) and also impact on rehabilitation (Gendreau, 1990)

Restitution

Eglash (1958)notes two schools of thought to the term restitution. The most
common is synonymous with reparation whereby the offender is required to pay
financially compensate the victim for the harm caused.

This is a function would only be fulfilled where compensation orders accompany

custodial sentences. The length of the sentence does not affect a compensation
order so even determinate sentences (AUC and ACR) would gather the same effect
as indeterminate and mandatory life sentences.

Financial compensation will help cover expenses incurred, and provides

acknowledgement that the victim was wronged (Zehr, 2005;

Eglash (1958) also note creative restitution whereby offenders give something of
themselves, back to the community. Yong Adult offenders (18-20) under DTO in
some YOIs have access to voluntary community service programmes. Community
service is a predominantly, mandatory for DTO and section 90/91 sentences, and for
release from adult custodial sentences longer than 12 months.

For the best restitutive effect community service should be available on a voluntary
basis to adults serving indeterminate and mandatory life sentences, and. It should
also be included as a mandatory part of determinate sentences under 12 months
long.

Joint survey form Victim support and Smart Justice (2006) of 982 victims of non
violent crime noted that 80% sample wanted more constructive activities for
offenders within the community, while 51% agreed that offenders should meet with
victims and make amends

Deterrence

One of the more important functions of any punishment is its ability to discourage
offenders form re-offending, either through individual deterrence or general
deterrence.
Individual deterrence is achieved by giving the offender a preview of what penalty
awaits should he re-offend. General deterrence comes in the form of legislations to
impose those penalties as well as the punishment met to others as an example
(Henderson, 1996). Custodial sentences are most severe punishments available to
the courts under the Criminal Justice Act (2003), taking away individual’s freedom,
removing them form their family, jobs, homes and stigmatizes them as criminals. The
prospect of a first or even second period of custody would deter a rational individual
form offending (Andenaes, 1968Nagin, 1998; Wood & Grasmick, 1999)

Evidence for the late 198s and early 1990s show negative correlations between
likelihood of conviction and crime rates— increase in the likelihood of being caught
correlated to decreases in crime rate (Farrington, Langan, Wikstrom, 1994; Langan
and Farrington, 1998)

Statistics give a mixed impression. Ministry of Justice notes that immediate custody
convictions for 2009 were 1% higher than those in 2008, and 5% higher than those
in 1999. Magistrate’ s Courts impose 4% less immediate convictions than in 2008,
while Crown Court saw the highest rate of immediate custody in 11 years. There
was a 35% decrease in indeterminate sentences from 2008 to 2009, and 20%
decrease in the number of life sentences. For 2009 also noted that 7% of all
juvenile receiving custodial sentences had no previous criminal history, while only
10% of adults had no criminal history

Alternatively 16% of juveniles and 47% of adults had more than three priors.

These statistics show that prison does not appear to deter, in fact it may seem to
increase offending, particularly for first time offences. Social learning theory can be
used to explain these phenomena.

Stalan (2002) notes that national opinion polls world wide show that the public has a
lenient view on penalties towards criminal behaviour. HT punitive public believes
that the justice system is too lenient towards crime, while the merciful public which
supports rehabilitation and non custodial sentencing believe is less harsh penalties.
Both when asked to choose appropriate sentences for a fictitious burglar display
preferences much more lenient that those employed by the courts (Roberts & Stalan
1997; Roberts, Stalan, & Hough, 1997) this view of leniency is internalised and
incorporated into the core beliefs of individuals, who form a young age believe that
when they often the punishment will be rather lenient for low level crimes. This belief
is further reinforced by alternative sentences such as fines, or compensation orders
given without any form or custody or community order. Offending behaviour will
persist as the individual develops.

Lord Taylor of Gosforth (1992) noted that custodial sentences fo up to 18 months

provided only limited public protection. Only a quarter of 12 months sentence would
be served, as release is entitled at 6 months, with a 90 day reduction for which the
prisoner will be on home curfew. The prisoner would the community after 3 months
and the prison service wont be able to address the offending behaviour

Custodial sentences are thought by some to further indoctrinate the offender into the
criminal world. Increasing custody rates bring more people into prison and detention
centres, the stigmatizing aspect of sentencing looses its effect (Nagin 1998). With
rehabilitative programmes such as community volunteer work, and victim mediation
unable to be administered to evenly, cognitive distortions, moral disengagement and
anti social behaviours are shared and reinforced while their old views are even
further reinforced. (Buksttel Gendreau, Goggin & Cullen, 1999;)

Rehabilitation

The other important function of punishment is rehabilitation, which is closely

correlated to deterrence. Blackman (1995) notes that punishment only trains what
not to do, unwanted behaviour must be replaced with an appropriate one.
he Social Exlusion Unit (2002) identifies the following areas as the most common
needs to be met by rehabilitation: a) Needs assessment— identify the offenders
needs and classify the type of intervention needed. b)Education—address
educational deficits c)Behavioural and cognitive skills programmes— challenge
offending behaviour and offending related risks. C) Vocational training—
transferable recognised skills to increase prospects of employment on release. d)
Work— give prisoners experience of the working day and increase prospects of
employment on release. e) Resettlement— to provide assistance to prisoners in
finding accommodation and employment after release.
For those on short term sentences, very little is offered in the way of
rehabilitation. Adults often serve sentences in local prisons where overcrowding
 makes any rehabilitative programmes largely impossible. Those in short term prison
as well as youths serving short sentences in detention or training centres the Social
Exclusion Unit Report (2002) notes that there currently rehabilitation regimes
specifically designed to meet the their rehabilitative needs as are not in custody long
enough for rehabilitation programmes to make a difference. Currently the
stipulations that would come with community orders and supervision on release
would offer more in the way of rehabilitation.
To accommodate those on short sentences, behavioural programmes,
particularly drug and alcohol rehabilitation, educational and vocational programmes
should be made available while in custody with links for continued involvement even
after release
Offenders serving long term sentences have the chance to reap the full benefits
of rehabilitative programmes. Although overcrowdings, does hinder the
effectiveness and timeliness in which the aforementioned areas can be attended too
Any prisoners have experienced a lifetime of social exclusion so id 9 key factors that
influene reoffending:
Education
Employment custody to wor initiative - assisting prisoners to gain employment on
release and have access to accommodation. This is through basic skills and
vocational training in prison, connecting them with job or taining places nd
accommodation on release.
Drug and alcohl misuse
Mental and physical health
Attitudes and self control
Institutional and life skills
Houseinf
Financial support and debt
Family networks.

 Report noted that offending behaviour programmes could reduce reconviction by

14%
 RAPt Alcohol and Drug Addiction Project can reduce reconviction by 11%
 Note that overcrowding does hinder the rehabilitative progress of the programmes
movement of prisoners and the gap between the number of prisoners and spaces
available make I difficult to provide sufficient positive activity for enough prisoners
 Purposefull activity is carious activities including time spent at work, education,
training, physical education and other activities such as offender behaviour
programmes.
 With increased population looking now no longer at hours of activity delivered,but
reflectipon of positive poutcome for prisoners prior to and after relase.
 Argue that lack of attention paid to prisoners during short stay in prison together with
lack resettlement services or social support following release increases their risk of
recidivism.
 Short tem is anyone less than 12 months often constitute the majority of imprisoned
each year. 20009 64%, these tend to have higher conviction rates than other
offender s and are responsible for the majority of crimes (The Halliday Report)
 Form a rehabilitative view point they are a challenge as they have a wide range of
offending motives but most critically relating to drug and alcohol abuce, employment
and accommodation. With many having significant educational and behavioural
needs deficiencies.
 Majority of short term held in local prisons that are the most over crowded, with local
prison serving as little more than containment unit rehabilitation is largely
unavailable.
 has noted that in adition to little rehabilitative work there is little practical support
awarded to them before and after. Often justified on the grounds that little can be
done in the short time frame.
 Recommendation os special course intensive in basic education and drug treatment
that can be completed while in cusdody, ability to commence long term education,
vocational and treatment programmes in prison directly linked to programmes
available in the community. So as to allow them to continue the programmes after
release .
 Longe term offenders and offending behaviour programmes
 Home office findings for 2003 note mixed results in that no difference in reconviction
rates for prisoners who participated in Enhanced Thinking Skills or Reasonins and
Rehabilittation programmes between 1996 and 1998. Study from 2002 showed
reduced rates for the same programmes between 1994 and 1996. As

Conclusion

Custodial sentences shall continue to be a facet of the criminal justice system. The
benefits of prison and detention as a punishment far outweigh the disadvantages.
We have seen that for the most part both short and long term sentences meet most
of the functions of a punishment. From a retributive stand point both sentences place
the offender in a position to take responsibility for their actions. Restitution in the
form of compensation as it does not hinge directly on the sentence length itself, offer
the same gains for both types of sentences. Where they differ are largely in the
rehabilitative, incapacitative and deterrent aspect. Where incapacitation ins
concerned short term scentences only remove the offender form the community for a
limited period of time, during which he he is exposed to an invironment where his
offending behaviour, is not addressed before release into society with the same
bleifs attitudes and behaviours he had before. Long term sentences are
incapacitated for a longer period of time where by their offending behaviour can be
identified and addressed, with steps taken to rehabilitate and deter them form further
offending. It would be in the best interest of the criminal justice system to remove
short term sentences entirely, replacing them with community orders, backed up by
long term sentences, should the conditions of supervision not be met
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