The effects of both gender and ethnicity may also be related to the socio-economic circumstances of offenders. Thus it is more likely to be women in adverse socio-economic circumstances that may end up in prison, along with many black offenders who are unemployed. For example in the case of the unemployed, there is a clear example of indirect and ‘unintentional’ discrimination. It is routinely stated in mitigation for offenders that they are m employment and that imprisonment would lead to the loss of such employment.
Such employment is generally regarded as being a sign of good character, and a factor that might help promote good habits and so reduce the likelihood of future offending and thus appeal to judges seeking a rehabilitative approach. The unemployed, having less to lose, may be more likely to end up in prison, as it may be viewed as more difficult to fine unemployed offenders. However, few studies have found that social status or class alone affects sentencing outcomes.
Indeed judges concerned to be fair, and seen to be fair, may be conscious of any likely partiality on the grounds of class. Thus, Mr. Justice Henry, on refusing leave to appeal against a i?? 5million fine levied on one of the Guinness defendants, commented that: “Punishments are after all intended to be punitive and the court must ensure that a man’s wealth and power does not put him beyond punishment. ‘” (The Guardian, 3 October 1990; quoted in McLaughlin and Muncie, 1996 p. 119)
Taken together, consideration of the effects of gender, ethnicity and socio-economic status on sentencing decisions reveals how difficult it is to determine whether any discrimination exists on the part of judges. Nonetheless, at the end of the criminal justice process there are differences in the proportion of sentences received by some groups of offenders. Various attempts to change patterns of sentencing and, in particular, to reduce the use of custody, have been circumvented by judges.
Not surprisingly, the English and Welsh system has occasionally been ridiculed regarding their sentencing practices. The government finally responded to these and similar criticisms by publishing a White Paper, Crime, Justice and Protecting the Public (Home Office, 1990). This formed the basis of an important step to limit the exercise of discretion and to institute clear principles and rules in sentencing which were to be included in the Criminal Justice Act 199 1. ‘It was once believed that prison, properly used, could encourage a high proportion of offenders to start an honest life on their release.
Nobody now regards imprisonment, in itself, as an effective means of reform for most prisoners… normal social or working habits do not fit, The opportunity to learn from other criminals is pervasive. For most offenders, imprisonment has to be justified in terms of public protection, denunciation and retribution. Otherwise it can be an expensive way of making bad people worse. The prospects of reforming offenders are usually much better if they stay in the community, provided the public is properly protected… ”
(Home Office, 1990, p. 18-19, cited in McLaughlin and Muncie, 1996 p. 117) An alternative to the Criminal Justice Act 199 1, and the philosophical and political changes that it signified, could have been to adopt sentencing guidelines for the courts in much the same way as those favoured in Australia and some states in the USA, during the past decade. Such guidelines essentially prescribe in advance the appropriate penalty for a wide range of offender/offence combinations, based on a much more systematic approach.
By providing judges with one set of criteria relating to the circumstances of the offence in question, and a different range of criteria taking into account relevant characteristics of the offender. Several advantages are claimed for the guideline approach, not least of which is the achievement of greater consistency in sentencing. It also enables sentencing practice to be monitored and subjected to regular review. More importantly, it could provide an effective way of harnessing sentencing policy to the broader aims of penal policy.
However, there would be a number of practical difficulties in extending such a model to the English sentencing tradition, particularly if a system of legislative guidelines were adopted, and more so if they were explicitly aimed at reducing overall punitiveness. Apart from the drafting problems that would be encountered, judges could resent the imposition of such a system. Who might not find it difficult to subvert the intended aims through a process of ‘destructive interpretation’, as has been suggested may have happened to some extent to the 1991 reforms.
Another problem, is the fact that most systems of guidelines have been devised with a limited range of penalties, usually just imprisonment or probation, therefore it would be difficult to adapt to the many measures available to English judges. A possible solution to this particular problem would be to adopt the approach recommended by the Canadian Sentencing Commission (1987), in which guidelines are used in the first instance simply to indicate offences for which the presumptive sentence would normally involve either a community sentence or a custodial penalty.
Further guidance, in the form of a presumptive penalty, is only provided in the case of offences involving a presumption of custody. The application of community sanctions would remain at the discretion of judges, though there would then be a price to be paid in terms of consistency of application (Cavadino and Dignan, 1997 p. 105). ‘The powers of sentencing are still jealously guarded and attempts to regularise or ‘interfere’ with them are vigorously resisted.
Consequently, as the police bring more people before the courts and the courts continue to impose custodial sentences for many less serious offences, the number of people sent to prison continues to rise. In the meantime, as the quantity of justice dispensed grows, procedures to improve the efficiency and cost-effectiveness of the courts, together with challenges to the fundamental rights of the accused, raise crucial questions about the quality of that justice. ‘ (Fitzgerald and Muncie, 1983 p. 138)
However, it remains extremely unlikely that English judges would contemplate the use of the guidelines outlined. Although, some critics of the English system would countenance the setting up of an independent Sentencing Council (Ashworth, 1983). In which it is assumed that a wide representation of judges, from all levels of court and from other criminal justice professions, would automatically lend itself to the development of some realistic guidance acceptable to all (Cavadino and Dignan, 1992 cited in McLaughlin and Muncie, 1996 p. 119).