LITERATURE REVIEW
Numerous academic theories and approaches are present today that describe the similar and contrasting views of dealing with the crimes and criminals in a society. Community-based punishments and the custodial sentences are between the two dominant approaches for most of the criminologists. Several theories and approaches underlying the principles behind the communal and custodial punishments are developed and debated heavily. The chapter reviews all the relevant theoretical approaches along with the evidences from the past studies investigating similar issue in other European countries.
2.1 Theoretical Punitive Approaches
2.1.1 Restorative Justice Approach
Past and existing researchers both realise the restorative justice as one of the vital punitive approach compatible with the needs of contemporary societies. According to Maiese, (2003), restorative justice is a forward-looking preventive response to the crime. For him, crime must be seen in a social context. Therefore, restorative justice feeling does not only look at the victim requiring healing but also realises healing for the offender too. Walgrave, (2013) believe that restorative justice approach pertains to refer the concept of community responsibility in remedying the conditions contributing towards the crime. Vanfraechem et al., (2015) acknowledge the main concept behind restoration approach as the way to help criminals restore because the theory underlying it assumes regenerating as the best approach for preventing crimes.
According to the findings of Wenzel et al., (2008) the theory of retributive justice highlights the idea that individual should be given the punishment exactly in accordance with the extent and severity of the crime which he has committed. It is further stated that this kind of practices is adopted to punish the culprit to the extent which he has committed a particular crime, not more not less. It has also been argued through this theory that individuals who have suffered from crime along with the friends and relatives of those victims will not be ready to co-operate with the society and its rules and regulations if the criminal is not brought to justice. The theory can be related to the concept of community-based and courts based punishments in a way that these two punishments are also largely dependent and are provided keeping in view the extent to which the individual has committed the crime (Markel, 2009; Markel & Flanders, 2010).
2.1.2 Retributive Approach
Completely in contrast with the restorative justice, the theoretical approach of retributive justice considers punishment proportionately with the crime committed as the best way of justice to the victim and his family. Proponents of this punitive approach realize it as a way to repair of justice through a unilateral imposition of punishment. According to this theory, whoever does a wrongful or illegal act deserves punishment in response but appropriate to the damage he or she has done.
According to Meltsner, (2010) court-based punishment or custodial sentences are the practical punitive system underlying the principles of the retributive approach. According to this practice, big criminals who have been involved in illegal activities or any other capital crimes must be sent to prison or asked for court-based penalties. The individuals sent to jail are ordered to stay in jail for a specific period. They are asked simultaneously to complete their punishment along with other assigned tough works and routines. Jails cannot be overcrowded at any cost it can cause such a big mishap that there would be a regret for many years coming. Prisoners present in the jail are unpredictable and can go down to any stage to do any work which is illegal, and we cannot hope for any positive work from them because their minds are full of criminal activity which needs to be cleaned (Johnson & Johnson, 2012; Meltsner, 2010). These Court punishments are only for big criminals so that only particular group can stay there. In the view of Franklin et al., (2006), there are advantages and disadvantages of court based punishment. Advantages include the fact that small criminals will not overcrowd Jails because for those communities based punishments are present. There can be a proper check on each prisoner easily, and management will not be facing any difficulties in assigning rooms to prisoners. There can be proper Attendance schedule so that to keep a close on eye on every prisoner as it is the sensitive case and cannot be left freely or given reliability (Ruddell & Mays, 2007; Cullen et al., 2000). After examining the two theoretical concepts behind the punitive approaches, the next section of the chapter reviews academic literature on the different types of communal punishments.
2.2 Types of Communal Punishments
There are several types of the communal punishments regarded as alternative to the worldwide imprisonment approach. These non-custodial sanctions and penalties are developed for about centuries ago. The three most common types of community-based punishments are Probation, Shock probation, and Parole. Probation is defined as a situation of the time in which a person who has been guilty of committing a crime is permitted to remain out of prison on the condition that the person is able to behave well and is not indulged into committing any more criminal activities (McAra & McVie, 2007). In the view of Rodriguez, (2007) probation is the act of suspending the punishment of a criminal who has been guilty of undertaking illegal activities behaves well and is able to create a good reputation for him into the mind of the authorities who then lets him go before the actual period of punishment expires. According to Stickels, (2007), shock probation refers to the policy through which a judge orders a person who has been convicted of a criminal activity is sent to the prison for a limited amount of time and then terminates his punishment for the remainder of the period in favour of probation. It is further suggested that the main purpose of giving that individual a temporary prison is to make him experience the life that he could face in the prison in the long-term if he does not correct his actions. It is further stated that temporarily awarding these kinds of punishments to the criminals can result in individuals learning from their mistakes without having to encounter long-lasting punishments. The other concept related to court based punishments is referred to as parole. In the view of Grattet et al., (2009), parole refers to the temporary release of a prisoner who agrees to fulfil certain conditions before the completion of his period of sentence. It is also suggested that these sorts of facilities are provided to those criminals who provide their work to the authorities regarding their commitment and fulfilment of promises in the future with respect to presenting themselves in front of the law (Love, 2011).
Other than these approaches, community-based penalties are also present which can be implemented without any court supervision. These include reparation, confiscation, suspension of driving or other licence and fines. Alarid, (2016) defines reparation as the way in which the offender offers monetary compensation or unpaid services to the victim. Similarly, confiscation refers to the property driven in commission of an offence. Community punishments can also take form of fines and penalties. All these punishments are based on the violation of interpersonal relationships between the offender and the victim. Day, (2003) moreover, highlights the significance of parameters yardsticks in order to examine whether the victims have experienced justice through the community-based punishments.
Thus, the above review of community-based punishments confirm that there are several options available for the UK justice system in order to implement community-based punishments as a soft alternative for the custodial sentences. For substantiating the theoretical arguments, the next section of the chapter critically analyses the evidences from other European countries, already using community-based punishments in place of custodial sentencing. These findings would help in developing the conceptual research framework for the research article review in the results’ chapters to offer comparative analysis of the community-based punishments and custodial sentences.
2.3 Review of Evidences from European Countries
From the review of past academic researches, it can be examined that most of the authors have agreed on the heavily outnumbered statistics of the criminals who are under community supervision within the European countries. According to Daems et al., (2013) in most jurisdictions of the Europe, number of detainees has decreased up to greater extent after community-based punishments. Germany and Denmark come out as two top European countries pursuing the community-based punishments. Subramanian & Shames, (2013) has confirmed the above argument by pointing out that, “In Germany and the Netherlands, incarceration is used less frequently and for shorter periods of time. Both countries rely heavily on non-custodial sanctions and diversion, and only a small percentage of convicted offenders are sentenced to prison —approximately six percent in Germany and 10 percent in the Netherlands”.
Among the other European countries, UK also has evidences of using some sort of community services for the offenders. These community services are generally limited to the community service programs arranged for the offenders suffering from mental disorders or for the minors and children who have committed the crimes. Daems et al., (2013) argue that cost and expenditures of the reoffending and imprisonment both are extremely concerning for the authorities. Despite long period detainments and heavy criminal sanctions, according to a recent policy paper in the UK, the ‘vicious cycle’ of reoffending by ex-prisoners costs the UK economy between £7-10 billion per year. Similarly, Blay, (2010) has also reported on the community service orders introduced in the Spanish legislation with the 1995 Criminal Code. In Spain, these community-based punishments are allowed as a substitute for the prison sentences up to one year. In case, community based punishment is announced as an alternative for prison sentence, then such orders are imposed with fines. Likewise, authors also reported that in Spain community service orders are mostly announced for two types of offences i.e. road safety offences and family and gender violence offences. Despite, the approach is implemented in the country as soft punishment yet the authorities consider need for the correctional administration for the revised and better implementation of the community-based punishments (Blay, 2010).
Likewise, in discussing the lessons learned from Europe in reducing custodial sentences and imprisonments, Allen, (2012) sheds light on the remarkable experiments of the community punishments and rehabilitation in Finland, in Germany, in Netherlands, as well as on the United States, Texas approach in recognising their expensive prison systems. These countries have acknowledged the holy grains of decreasing crime rate associated with the non-custodial punishments. The countries do not only tend to decrease their prison populations but their declining budgets are self-explaining the effectiveness of the community-based punishments.
2.4 Summary of Literature Review and Driven Conceptual Framework
These findings confirm the rising impact of community-based punishments all across the western countries and therefore based on these findings, it can be stated that UK needs more retrospective approach and practices in implementing the community-based punishments as an alternative to the custodial sentencing. However, for this purpose, factors causing differences and similarities need to be taken into account. This is the core element investigated in the current research. These theoretical and literature findings suggest the need to perform a comparative analysis of the community-based punishments and custodial referencing for better implementation of the approach in United Kingdom.
2.5 Conclusion of Chapter
The chapter concludes the detailed meaning, functioning and the types of community-based punishments both in light of the theoretical approaches as well as from the perspectives of the past academic studies. Both restorative justice and retributive justice approaches are opposite to each other. Different countries are applying and implementing these approaches using their own justice models according to the local laws and administration procedure. However, the main purpose behind adopting the model in all the countries is similar i.e. restoration of interrelationships between the offender and the victims and to reduce crime rate by considering crime as social subject. The next chapter of the study presents methodology that would be used for the comparative analysis of the similarities and differences in the community-based punishments and custodial sentences.
2.1 Theoretical Punitive Approaches
2.1.1 Restorative Justice Approach
Past and existing researchers both realise the restorative justice as one of the vital punitive approach compatible with the needs of contemporary societies. According to Maiese, (2003), restorative justice is a forward-looking preventive response to the crime. For him, crime must be seen in a social context. Therefore, restorative justice feeling does not only look at the victim requiring healing but also realises healing for the offender too. Walgrave, (2013) believe that restorative justice approach pertains to refer the concept of community responsibility in remedying the conditions contributing towards the crime. Vanfraechem et al., (2015) acknowledge the main concept behind restoration approach as the way to help criminals restore because the theory underlying it assumes regenerating as the best approach for preventing crimes.
According to the findings of Wenzel et al., (2008) the theory of retributive justice highlights the idea that individual should be given the punishment exactly in accordance with the extent and severity of the crime which he has committed. It is further stated that this kind of practices is adopted to punish the culprit to the extent which he has committed a particular crime, not more not less. It has also been argued through this theory that individuals who have suffered from crime along with the friends and relatives of those victims will not be ready to co-operate with the society and its rules and regulations if the criminal is not brought to justice. The theory can be related to the concept of community-based and courts based punishments in a way that these two punishments are also largely dependent and are provided keeping in view the extent to which the individual has committed the crime (Markel, 2009; Markel & Flanders, 2010).
2.1.2 Retributive Approach
Completely in contrast with the restorative justice, the theoretical approach of retributive justice considers punishment proportionately with the crime committed as the best way of justice to the victim and his family. Proponents of this punitive approach realize it as a way to repair of justice through a unilateral imposition of punishment. According to this theory, whoever does a wrongful or illegal act deserves punishment in response but appropriate to the damage he or she has done.
According to Meltsner, (2010) court-based punishment or custodial sentences are the practical punitive system underlying the principles of the retributive approach. According to this practice, big criminals who have been involved in illegal activities or any other capital crimes must be sent to prison or asked for court-based penalties. The individuals sent to jail are ordered to stay in jail for a specific period. They are asked simultaneously to complete their punishment along with other assigned tough works and routines. Jails cannot be overcrowded at any cost it can cause such a big mishap that there would be a regret for many years coming. Prisoners present in the jail are unpredictable and can go down to any stage to do any work which is illegal, and we cannot hope for any positive work from them because their minds are full of criminal activity which needs to be cleaned (Johnson & Johnson, 2012; Meltsner, 2010). These Court punishments are only for big criminals so that only particular group can stay there. In the view of Franklin et al., (2006), there are advantages and disadvantages of court based punishment. Advantages include the fact that small criminals will not overcrowd Jails because for those communities based punishments are present. There can be a proper check on each prisoner easily, and management will not be facing any difficulties in assigning rooms to prisoners. There can be proper Attendance schedule so that to keep a close on eye on every prisoner as it is the sensitive case and cannot be left freely or given reliability (Ruddell & Mays, 2007; Cullen et al., 2000). After examining the two theoretical concepts behind the punitive approaches, the next section of the chapter reviews academic literature on the different types of communal punishments.
2.2 Types of Communal Punishments
There are several types of the communal punishments regarded as alternative to the worldwide imprisonment approach. These non-custodial sanctions and penalties are developed for about centuries ago. The three most common types of community-based punishments are Probation, Shock probation, and Parole. Probation is defined as a situation of the time in which a person who has been guilty of committing a crime is permitted to remain out of prison on the condition that the person is able to behave well and is not indulged into committing any more criminal activities (McAra & McVie, 2007). In the view of Rodriguez, (2007) probation is the act of suspending the punishment of a criminal who has been guilty of undertaking illegal activities behaves well and is able to create a good reputation for him into the mind of the authorities who then lets him go before the actual period of punishment expires. According to Stickels, (2007), shock probation refers to the policy through which a judge orders a person who has been convicted of a criminal activity is sent to the prison for a limited amount of time and then terminates his punishment for the remainder of the period in favour of probation. It is further suggested that the main purpose of giving that individual a temporary prison is to make him experience the life that he could face in the prison in the long-term if he does not correct his actions. It is further stated that temporarily awarding these kinds of punishments to the criminals can result in individuals learning from their mistakes without having to encounter long-lasting punishments. The other concept related to court based punishments is referred to as parole. In the view of Grattet et al., (2009), parole refers to the temporary release of a prisoner who agrees to fulfil certain conditions before the completion of his period of sentence. It is also suggested that these sorts of facilities are provided to those criminals who provide their work to the authorities regarding their commitment and fulfilment of promises in the future with respect to presenting themselves in front of the law (Love, 2011).
Other than these approaches, community-based penalties are also present which can be implemented without any court supervision. These include reparation, confiscation, suspension of driving or other licence and fines. Alarid, (2016) defines reparation as the way in which the offender offers monetary compensation or unpaid services to the victim. Similarly, confiscation refers to the property driven in commission of an offence. Community punishments can also take form of fines and penalties. All these punishments are based on the violation of interpersonal relationships between the offender and the victim. Day, (2003) moreover, highlights the significance of parameters yardsticks in order to examine whether the victims have experienced justice through the community-based punishments.
Thus, the above review of community-based punishments confirm that there are several options available for the UK justice system in order to implement community-based punishments as a soft alternative for the custodial sentences. For substantiating the theoretical arguments, the next section of the chapter critically analyses the evidences from other European countries, already using community-based punishments in place of custodial sentencing. These findings would help in developing the conceptual research framework for the research article review in the results’ chapters to offer comparative analysis of the community-based punishments and custodial sentences.
2.3 Review of Evidences from European Countries
From the review of past academic researches, it can be examined that most of the authors have agreed on the heavily outnumbered statistics of the criminals who are under community supervision within the European countries. According to Daems et al., (2013) in most jurisdictions of the Europe, number of detainees has decreased up to greater extent after community-based punishments. Germany and Denmark come out as two top European countries pursuing the community-based punishments. Subramanian & Shames, (2013) has confirmed the above argument by pointing out that, “In Germany and the Netherlands, incarceration is used less frequently and for shorter periods of time. Both countries rely heavily on non-custodial sanctions and diversion, and only a small percentage of convicted offenders are sentenced to prison —approximately six percent in Germany and 10 percent in the Netherlands”.
Among the other European countries, UK also has evidences of using some sort of community services for the offenders. These community services are generally limited to the community service programs arranged for the offenders suffering from mental disorders or for the minors and children who have committed the crimes. Daems et al., (2013) argue that cost and expenditures of the reoffending and imprisonment both are extremely concerning for the authorities. Despite long period detainments and heavy criminal sanctions, according to a recent policy paper in the UK, the ‘vicious cycle’ of reoffending by ex-prisoners costs the UK economy between £7-10 billion per year. Similarly, Blay, (2010) has also reported on the community service orders introduced in the Spanish legislation with the 1995 Criminal Code. In Spain, these community-based punishments are allowed as a substitute for the prison sentences up to one year. In case, community based punishment is announced as an alternative for prison sentence, then such orders are imposed with fines. Likewise, authors also reported that in Spain community service orders are mostly announced for two types of offences i.e. road safety offences and family and gender violence offences. Despite, the approach is implemented in the country as soft punishment yet the authorities consider need for the correctional administration for the revised and better implementation of the community-based punishments (Blay, 2010).
Likewise, in discussing the lessons learned from Europe in reducing custodial sentences and imprisonments, Allen, (2012) sheds light on the remarkable experiments of the community punishments and rehabilitation in Finland, in Germany, in Netherlands, as well as on the United States, Texas approach in recognising their expensive prison systems. These countries have acknowledged the holy grains of decreasing crime rate associated with the non-custodial punishments. The countries do not only tend to decrease their prison populations but their declining budgets are self-explaining the effectiveness of the community-based punishments.
2.4 Summary of Literature Review and Driven Conceptual Framework
These findings confirm the rising impact of community-based punishments all across the western countries and therefore based on these findings, it can be stated that UK needs more retrospective approach and practices in implementing the community-based punishments as an alternative to the custodial sentencing. However, for this purpose, factors causing differences and similarities need to be taken into account. This is the core element investigated in the current research. These theoretical and literature findings suggest the need to perform a comparative analysis of the community-based punishments and custodial referencing for better implementation of the approach in United Kingdom.
2.5 Conclusion of Chapter
The chapter concludes the detailed meaning, functioning and the types of community-based punishments both in light of the theoretical approaches as well as from the perspectives of the past academic studies. Both restorative justice and retributive justice approaches are opposite to each other. Different countries are applying and implementing these approaches using their own justice models according to the local laws and administration procedure. However, the main purpose behind adopting the model in all the countries is similar i.e. restoration of interrelationships between the offender and the victims and to reduce crime rate by considering crime as social subject. The next chapter of the study presents methodology that would be used for the comparative analysis of the similarities and differences in the community-based punishments and custodial sentences.
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