An Alternative to the Popular 'Punitive' forms of Punishment commonly used in England and Wales today

The prison system in England and Wales is a system that claims to serve a number of purposes. It claims to be; an effective form of deterrence towards future offenders; to be a source of useful education and other means of rehabilitation, including drug and alcohol counselling; a provider of sufficient retribution for the offender and finally it promises to keep the offenders away from the public to prevent any harm being done while they are in custody. The latter is still partially true; however the other claims are not being met by the prison system as a result of this failure to rehabilitate and deter; ‘statistics have shown, the prison population in England and Wales has risen from around 48,000 in the 90s to around 75,000 in 2005’ (Newburn, T. 2007).  If the prison system was efficient enough to be able to successfully deter future offending and rehabilitate current prisoners then the prison population level should have fallen, or at least levelled out by now. Michael Howard made his famous ‘prison works’ speech in 1993 explaining his faith in the prison as the primary form of offender punishment in England and Wales. He noted that ‘prison works as it is the only means to keep the offenders separated from the public and they cannot do any more harm’ (Katz, L., Nicholls, M. 2004). Alternative forms of punishment will challenge this valuable attribute of the prison system, as well as taking on the challenge to turn around the failure of the rehabilitation of offenders in England and Wales.

            We must ask ourselves, why do we punish? Is it because; we must enforce the rule of law; we must enforce social morality; to demonstrate the consequences of breaking social and legal bonds or do we punish simply because an offence has been committed regardless of the justifications? All of these questions seem to beg more questions, and they do not account for the changing attitudes towards the welfare and rehabilitation of the offender and the concept of restorative justice that is so prominent in our late modern society.

            To grasp the concept of punishment, one must first understand what academics and officials constitute as being punishment. According to Kasachkoff (1973) punishment is ‘something that must involve an evil or unpleasantness; this must be because of a violation of law; this must be directed at the offender; it must be the work of personal agencies and not merely the natural consequence of their actions; it must be imposed by an authority conferred by the system of rules against which the offence has been committed and the pain must be intentional and not accidental’. If we are to follow these criteria of punishment then the notion of restorative justice must surely be unacceptable? As many would argue that the pain and unpleasantness caused by the so called punishment is merely a side effect of having to take part in the restorative programme or order. However, some restorative justice techniques can be both punitive and restorative, especially in the case of youth justice and juvenile offending. Jeremy Bentham (1823), one of the founders of the theory of utility, believes that ‘all punishment is in itself evil, and that upon the principle of utility it must only be used if the outcome of adopting this ‘evil’ method will promise to exclude some greater evil’, here Bentham is referring to the importance of deterrence in the justice system.

            In the 17^th and 18^th century the criminal justice system began to move into the new era of alternative sentencing. One of the first shifts from using the prison system to using alternative forms of punishment can be seen as the introduction of the transportation of prisoners to other British colonies. The cause for this change in penal policy, according to Lewis (1988), was due to ‘the British aversion to building new penitentiaries as a result of the rising prison population’.  The concept of restorative justice is new to the criminal justice system; it is a factor of late modernity that emerged from the increase in the concern for the welfare of young offenders and the importance of victim and community involvement in the process of determining a sufficient and proportionate punishment for the offender. There are two key pieces of legislation that highlight the shift into the restoration of offences from the direct punishment of offenders. Roberts and Hough (2005) ‘examine the introduction of the Crime and Disorder Act 1998 as the catalyst to new reforms and considerations to the youth justice system in England and Wales’. These reforms and considerations include using more early intervention tactics and alternative sentencing to manage and control crime. These considerations into welfare and inclusion took precedence in the area of youth justice, as it was found that early intervention tactics, less punitive and more restorative justice methods actually aid in reducing re-offending, which in effect should overrule the importance of the consequential theory of deterrence. According to Crawford and Newburn (2003); Crawford and Burden (2005), cited in, Muncie (2009), ‘such measures like the referral orders and other restorative approaches have created a shift in the youth justice system from being exclusionary and punitive to becoming inclusionary and restorative’.

            The introduction of such inclusionary and restorative methods such as; ‘reparation orders and action plan orders were seen as grounds to breaking into an era of restorative justice in England and Wales. However one of the most significant creations in the restorative justice system was the creation of the referral order with youth offender panels in the You Justice and Criminal Evidence Act 1999’ (Muncie, J. 2009). The Referral Order is an alternative to the use of the prison as a form of offender punishment and a means to achieving justice. The Referral Order is a product of the Youth Justice and Criminal Evidence Act 1999, following the introduction of the Crime and Disorder Act 1998 that sparked the shift from punitive to restorative methods of crime control and punishment. There is growing concern for the youth of today and their involvement in criminal activities. The Youth Justice and Criminal Evidence Act 1999 brought a new alternative to the prison which would focus on the restoration of harm and the re-integration of the offender into the community through a process of reintergrative shaming. Braithwaite, 1989; Braithwaite and Pettit, 1990, cited in, Wright, 2002, describe retintergrative shaming as the ‘restitution, compensation and reparation in recognition of harm’. Through this process the offender must accept what he or she had done, and show real remorse for their actions and offer, or at least, willingly participate in activities to make some amends to the victim and the community.  A referral order is given to a first time offender who is taken to court for an offence that they had pleaded guilty to. Therefore the offender must first appear in court before a referral order can be given, this can have a profound impact on the offender in making them realise that there are consequences for their actions. According to the Youth Justice Board (no date) ‘when a young person is given a referral order, they must attend a youth offender panel, this panel will discuss the offence and eventually come up with a contract between the offender and the victim or community. The aim of the contract is to repair the harm caused by the offence and address the causes of the offending behaviour’. A similar approach to using mediated sessions between victim and offender has been used in Northern Island. The Northern Island Criminal Justice Review (2000) made the recommendation for ‘the development of restorative justice approaches for juvenile offenders’ as well as future focuses on ‘proportionality, meeting a victims needs, involving the offender, prevention, reientergrative shaming, youth conferencing and using means of reparation.’. These methods that have now been adopted in Northern Ireland have formed youth conferencing, which is very similar to our referral order. Like the referral order, the youth conference service; ‘gives the young offender the opportunity to show remorse for their actions, to understand and make amends to the victim’, (Youth Justice Agency, no date).

A youth offending panel consists of two volunteers from the local community, a member of the local youth offending team, the offender and any family/carers deemed necessary to be there for support and often the victim of the crime will attend the meeting. The two volunteers from the local community represent the community as a whole, they are chosen carefully for their reason and understanding of the process, they have relative training and they provide input into the restorative measures that could be used to repair any harm done to the community. The member of the Youth Offending Team will mediate the meeting, using their experience with juvenile offenders and ensure that the meeting is productive and run smoothly. However the most significant aspect of the referral order is the inclusion of the victim in the justice process, this allows for the victim to have great input into getting what they believe to be reasonable justice. Hudson, 1996, cited in, Muncie, 2009, believes that ‘the crucial point for abolitionism is that inclusionary rather than exclusionary means should be utilized to respond to harmful behaviours’.

This means that more power should go back to the community with regards to this kind of criminal justice method. Muncie, 2009 supports the view that ‘ the development of formalized criminal and youth justice systems has typically witnessed the removal of interpersonal conflict and dispute from the control of those individuals involved and their appropriation be an ever increasing number of state agencies’. Canada and New Zealand are great examples of how a restorative and inclusionary approach to justice can aid in reducing re-offending and reducing crime. They have used methods that ‘sought to recover the traditions of communally based restorative justice when crime is understood as an interpersonal harm rather than harm as a violation of an abstract legal rule’ (Muncie, J. 2009). According to Baldock, et al (2003), ‘the emphasis on early intervention to prevent escalation of criminal behaviour (nipping crime in the bud) was demonstrated by the introduction of the child safety order. This was aimed at children under the age of 10 who were seen to be somewhat at risk of criminal influence and it enabled them to be placed under the supervision of a social worker or youth justice worker’. The referral order works in a similar way by working with first time offenders to get them to show true remorse for their actions and to annul the wrongs done by imposing some kind of restorative punishment and to give justice to the victim and community directly through victim and community involvement. Of course the youth justice system is not ignorant to the notion that the offender is most likely not a first time offender; however it would be their first time in front of a magistrate and youth offending panel to receive punishment and this would be a daunting prospect for most young people.

The restorative approach of the referral order is significantly different to that of any other retributive approach, for example; according to Muncie (2009), Retributive Justice sees ‘crime as law violation, it focuses on establishing guilt or innocence, it’s state centred, the victims involvement is marginal, punishment is imposed to deter to prevent or exact retribution and it results in the exclusion of the offender from society through stigmatisation’. Whereas restorative justice takes these approaches to justice; ‘crime as a harm to individuals and communities, focuses on problem solving, it’s non-state centred but is community based, the victims are central to decision making, it sees punishment as ineffective and disruptive to community relations, and it revolves around the re-integration of the offenders through various methods of rehabilitation’ (Muncie, 2009). When put in this comparative perspective, the two approaches to justice can be seen to have massive differences, and it would take a number of years and a number of studies to really find out what approach is more effective in reducing crime rates and reoffending. Roberts and Hough (2005) conducted a study on the public’s opinion of sentencing young offenders in England and Wales. One of their studies included the ‘perceptions of the most important sentencing purpose’ with regards to young offenders and adults. This part of the study saw the public being asked to select the ‘most important aim when sentencing young/adult offenders’, the range of aims provided were; deterrence, proportionate and just sentence and punishment, rehabilitation, displaying societies disapproval, intentional exclusion of offenders and compensation to the victim. The results were shown where the public’s opinion thought the aims to be more important to young offenders or adult offenders. Deterrence, Rehabilitation, Showing societies disapproval and Victim compensation were all seen to be of greater importance to youth justice whereas imposing a proportionate and just sentence and keeping offenders out of circulation and away from the public fell into the adult offender category. The referral order uses the preferred approaches in its methods, especially in compensating the victim and showing societies disapproval of the crime. More punitive methods such as the prison and detention centres, like Cookham Wood for young offenders, tend to involve the approaches to justice that the public seem to favour imposing upon adults, and perhaps more attention should be given to the preference and importance of alternative approaches to youth and adult criminal justice.

The effectiveness of the referral order can be judged by what it can actually impose upon the offender. Section 8.2 a-i of the Youth Justice and Criminal Evidence Act (1999) outlines the provisions available to the Referral Order in dealing with a young offender that has come in front of a Youth Offending Panel; Section 8.2 a) ‘The offender to make financial reparation or other reparation to any person who appears to the panel to be a victim’. Financial reparation is quite strictly controlled in the youth justice system, as only a certain ‘reasonable’ amount of money could be paid back by the offender and often they are not as liable as some adults might be for more serious crimes. An example of financial reparation could be a payment of around £50 for inconvenience of circumstances or perhaps to fix a broken piece of property. Section 8.2 b) ‘The offender to attend mediation sessions with any such victim or other person’, much of the punishment included in a referral order is the interaction between the victim and offender and the imposed realisation of the wrongs they have done and the guilt and remorse they are made to feel. Section 8.2 c) ‘The offender to carry out unpaid work or service in or for the community’, here we have the provisions of a community service order, and a means to make amends any actual harm done to the victim and community. Section 8.2 d) requires ‘the offender to be at home at times specified in or determined under the programme’, Home Detention Curfews are similar methods to this punishment, as a punishment may simply be a massive inconvenience to the offender, and it certainly acts as a form of incapacitation. Section 8.2 e) requires ‘the offender to attend their school, other educational establishment or place of work’. Most importantly, Section 8.2. f) requires ‘the offender to participate in specified activities (such as those designed to address offending behaviour, those offering education or training or those assisting with the rehabilitation of persons dependant on, or having a propensity to misuse, alcohol or drugs).

It can be seen that even though an alternative form of punishment does not involve harsh punitive measures, it can always be unpleasant for an offender and it can attempt to make real amends directly to the victim and the community. The referral order allows for a great deal of community and victim involvement in the justice process, something which can be considered vital in achieving true justice in the eyes of the victim. It is a way to ‘nip the crime in the bud’, targeting first time offenders and by involving a varied number of methods of punishment and reparation techniques, such as; Home Detention Curfews, Community Orders, Intense Supervision and Surveillance Orders and Financial compensation to the victim.

References

Baldock, J., Manning, N., Vickerstaff, S. (2003) Social Policy. 2^nd edn. Oxford: Oxford University Press

Bentham, J. (1823) An Introduction to the Principles of Morals and Legislation. The Online Library of Liberty [Online]. Available at: http://oll.libertyfund.org/?option=com_staticxt&staticfile=show... (Accessed: 07-11-2010)

Great Britain. Youth Justice and Criminal Evidence Act 1999: Elizabeth II. Chapter 23. (1999) London: The Stationary Office

Hough, M., Roberts, J. (2005) ‘Sentencing Young Offenders: Public Opinion in England and Wales’, Criminal Justice, 5 (3), pp. 211 – 232 SAGE [Online]. Available at: http://crj.sagepub.com/content/5/3/211 (Accessed: 03-11-2010

Kasachkoff, T. (1973) ‘The Criteria of Punishment: Some Neglected Considerations’, The Canadian Journal of Philosophy, 2 (3), pp. 363 JSTOR [Online]. Available at: www.jstor.org/pss/40230398 (Accessed: 02-03-2010)

Katz, L., Nicholls, M. (2004) ‘Michael Howard: a life in quotes’, The Guardian, 26 August [Online]. Available at: www.guardian.co.uk/politics/2004/aug/26/conservatives.uk (Accessed: 01-10-2010)

Lewis, F. (1988) ‘The Cost of Convict Transportation from Britain to Australia, 1796 – 1810’, The Economic History Review, New Series, 41 (4), pp. 507 – 524 JSTOR [Online]. Available at: http://www.jstor.org/pss/2596599 (Accessed: 18-11-2010)

Muncie, J. (2009) Youth and Crime. 3^rd edn. London: SAGE Publications LTD

Newburn, T. (2007) Criminology. Devon: Willan Publishing

Wright, A. (2002) Policing, An Introduction to Concepts and Practice. Devon: Willan Publishing

Youth Justice Agency (YJA). (no date) Youth Conference Service. Available at: www.youthjusticeagencyni.gov.uk/youth_conference_service/ (Accessed: 19-12-2010)

Youth Justice Board (YJB). (no date) Youth Justice System, Referral Order. Available at: www.yjb.gov.uk/en-gb/yjs/sentencesordersandagreements/referralorder / (Accessed: 08-12-2010)