The prison system fails to achieve the core purposes of sentencing and punishment as it focuses solely on the punishment of offenders and not their rehabilitation and the recovery of victims. As a result, alternative options which attain all the core purposes holistically are better options to employ in order to help offenders and victims within the criminal justice system.
The core purposes of sentencing and punishment according to the New South Wales government are; the offender is punished for their actions, deter other individuals from committing crimes of a similar nature, protect the community from the criminal, promote rehabilitation of offenders, make the individual accountable for his/her actions, denounce the offenders’ behaviour and to recognise the harm brought to society by the actions of the individual. To try to reach the core purposes of sentencing and punishment, there are other options to pursue that do not involve prisons. Such examples include; Drug Courts, Youth Justice Conferencing and Circle Sentencing.
Prison sentences focus primarily on the core sentencing purpose of punishment of the offender by removing their freedom for the length of the sentence. Some of the other sentencing principles are met temporarily, for example, the broader community is safe from the offender while they are incarcerated. Prison also provides access to some rehabilitation programs that are not available in the community. In NSW this includes the Violent Offender Treatment Program and the Compulsory Drug Treatment Correctional Centre. However, the effectiveness of these programs is questionable, for example the Violent Offender Treatment Program did not reduce violent re-offending. In this way, prison achieves some of the core purposes of sentencing and punishment in the short term, such as protecting the community and offering access to rehabilitation while the offender is in prison.
Conversely, prison does not focus on the other sentencing principles or on meeting the goals long-term. For example, there is an extremely high level of recidivism within the Australian criminal justice system. Recidivism is a criminological term which refers to repeat offending and increases in the quantity of offences. Of Australian prisoners released in 2012-13, 40.3% returned to prison under sentence within two years. (White and Perrone 2015: 591). This shows that imprisonment does not necessarily deter criminals from reoffending as they are not learning from their mistakes, and are not being educated about what is morally and legally wrong within society. Given the high rate of recidivism, prison fails to achieve the core purposes of deterrence and accountability and does not protect the community in the long-term or provide effective rehabilitation.
With prison focused on punishment and short-term gains, alternative sentencing options that meet other sentencing principles are needed. Drug Courts have risen to prominence over the past two decades as a method to prevent the further reoffending of criminals. They serve as an alternative punishment and sentencing option to prisons as they promote the rehabilitation of the offender while recognising the harm that has taken place as a result of the offender’s actions. Offenders, if they have reached the required conditions for entry, are placed in a three-phase program that lasts at least 12 months, which is designed to stabilise offenders and reintegrate them into society. The Drug Court Program comprises of four key components; “close judicial supervision of offenders, mandatory drug treatment, random urine screens and a system of rewards and sanctions designed to ensure compliance with the program.” (Weatherburn, Jones, Snowball and Hua 2008: 1).
Offenders undertake a preliminary health assessment which determines whether they are eligible to enter the program. Before acceptance, offenders have a detoxification assessment and a treatment plan is formulated which includes what the individual may need within the program. In the first (stabilisation) phase, participants terminate drug use, aim to stabilise their physical health and stop any criminal behaviour or activity. Each week of the first phase, offenders report to the Drug Court once and have three urine tests, which must show no drug usage for them to continue the program. The second phase, or ‘consolidation’ phase, involves the education of offenders, and helps them to develop life and job skills. In this phase, offenders only report back to the Drug Court once a fortnight and take urine tests twice weekly. The third ‘reintegration’ phase expects participants to be ready to take employment and become fiscally responsible for themselves. Urine tests continue twice a week, but the offenders only report back monthly. Participants who do not make adequate progress may be terminated from the program but only when the court deems there is ‘no useful purpose’ in the offender continuing the program. Offenders who do not comply with the program conditions serve different punishments, most likely imprisonment for short periods of time.
The Drug Court Program achieves the core purposes of sentencing and punishment as it promotes the rehabilitation of the offender which in turn protects the community from further harm as the participant is learning to behave more socially, which helps them to recognise the harm they have brought to society. The program also serves as punishment as the offenders must go through the harsh process of drug detoxification, and if they fail to complete the program must serve an additional short sentence. The primary aim of the Drug Court program is to reduce recidivism rates in the participants. In a study conducted by Don Weatherburn, it was found that offenders that finished the program were almost 20% less likely than non-completers to commit further offences in four categories – any offence, offences against the person, property offences and drug offences. However, the study is not completely reliable as it is almost impossible to complete an evaluation of the program that is void of selection bias of the comparable groups. Another flaw of the Drug Court program is that it is very easy for people to be removed from the choosing ballot, just based on where they live. If offenders live outside of Sydney, where the program is based, they automatically lose the change of rehabilitation as the resources to carry out the program as scarcer in rural areas, and so it is not possible for them to participate. Thus, the Drug Court program stands as a viable alternative to prison as a method of punishment and rehabilitation, only it requires further development to become more widely available.
Alternate sentencing options are required to meet the core punishment principles that the prison system does not achieve. Restorative Justice is another alternative to sentencing and punishment. This method emphasises mending the harm caused by an offense, and involves the victims and communities in the reparation process, as well as the offender(s). Restorative Justice also emphasises the principles of development and reintegration. Two examples of Restorative Justice techniques are Youth Justice Conferencing and Circle Sentencing.
Youth Justice Conferencing involves a meeting between young offenders, victims, supporters, other relevant parties, police officers and conference facilitators to discuss the offense and come to an agreement between the offender and victim. The conference is broken into three phases – the introduction, the discussion of the offense and its impacts, and the discussion of the agreement – which last between 60 and 90 minutes. Throughout the conference the police officer serves as an authoritative legal presence and describes the outcomes of further offences, while the facilitator leads the conference and allows all participants that wish to speak the opportunity to do so.
The introductory phase involves the facilitator outlining the aims and guidelines of the conference, the roles and responsibilities of each participating individual and the legal status of the conference, while describing how the conference will run and what it should achieve. In the second phase, the police officer dictates an official explanation of the offense and the offender and victim both explain what happened. This is followed by a discussion of the effects of the incident to the young person, the victim and the community, and the victim will often apologise for their actions. The third phase involves the members of the conference suggesting and debating ways for the young offender to ‘make up for their actions’ with emphasis placed on negotiating an outcome that is agreeable by all the participants.
Youth Justice Conferencing helps offenders to recognise the harm they have caused to the victim, and on society, whilst making them accountable for their actions. By conversing with the victim, the offender can recognise exactly what impact their actions had and can be held accountable for them. The offender and the victim(s) are able to both explain their versions of the accident and the youth offender can provide reasons, if applicable, for why they committed the crime. By involving a facilitator, the police and support personnel, a reasonable punishment for the offender’s actions can be reached, such as community service or a fine, and if needed to victim may be able to receive compensation for any damages caused. “Latimer, Dowden, and Muise’s (2001) meta-analysis of 22 studies found significantly higher levels of satisfaction among victims and offenders who participated in restorative processes than in regular justice system practices.” (Hayes and Daly 2003: 733-734). Youth Justice Conferencing helps to ensure that the ideal results for many are met as there are representatives of many groups throughout the community present in the conference, and are therefore able to have their input into the outcome of the meeting and the punishment of the offender. A study conducted by Kathleen Bergseth and Jeffrey Bouggard found that young offenders who were referred to a Restorative Justice program proceeded better than those referred to the traditional juvenile court process on each outcome measure of the study (prevalence, number of later contacts, seriousness of later behaviour, time to first re-offence). These positive results support the notion that Youth Justice Conferencing stands as a attractive alternative to the traditional court process and the prison system, as most members of the community are pleased with the outcomes of the conference and juvenile offenders fare better in the future serving alternative methods of punishment to prisons.
Alternative options to prisons help to achieve more of the core purposes of sentencing and punishment, rather than focusing only the punishment of the offender. Circle Sentencing is another form of Restorative Justice that is used in Aboriginal communities as an alternative to formal court proceedings. It aims to provide a sense of empowerment in the sentencing procedure by diminishing the barriers that exist between formal courts and Aboriginal people, while also providing sentencing options which are more meaningful and relevant to offenders. It improves the support provided to victims and offenders while they partake in a healing and reconciliation process and while the offender undertakes their sentence. Circle Sentencing also aims to disrupt the cycle of recidivism that many Aboriginal people fall into. The Circle Sentencing meeting runs in a similar way to the Youth Justice Conference, in that the magistrate welcomes all participants followed by a group discussion to negotiate an outcome for the offender’s actions. Circle Sentencing also has a number of objectives, including; “increasing the confidence of Aboriginal communities in the sentencing process, providing more appropriate sentencing options for Aboriginal offenders, providing for the greater participation of Aboriginal offenders and their victims in the sentencing process and reducing recidivism in Aboriginal communities” (Potas, Smart, Brignell, Thomas, Lawrie and Clarke 2004: 75-76).
Circle Sentencing focuses on protecting the Aboriginal community affected by the crime while making the offender accountable for his/her actions and recognising the harm they have caused and providing a relevant punishment for the offender. The community-based approach of Circle Sentencing is believed to be it greatest strength. The direct involvement of the Aboriginal people helps the community feel a sense of security as members of the community are involved in the meeting and deciding on an appropriate punishment, thus they feel safe in their decisions. Like Youth Justice Conferencing, by involving the victim in the meeting, the offender is able to more easily recognise the harm they have caused, not only to the victim but to the wider community and by doing so can take responsibility for their actions. By achieving many of the core purposes of sentencing and punishment, Circle Sentencing is another viable option to use instead of formal court proceedings and imprisonment.
In conclusion, these alternative options of punishment are more successful at achieving the core purposes of sentencing and punishment than prisons, as they focus on more than just the punishment of the offender. As prisons fail to accomplish more than just the harsh punishment and treatment of prisoners, they should no longer be the main option for punishment within the criminal justice system as they do not fix the prevailing problem, just prolong further criminal activity. These alternative options reveal how the rehabilitation of criminals helps to reduce further criminal activity and protect society while still providing the offender with a punishment for their actions. The alternatives also help the offender to recognise the harm they have brought to victims and the wider community and holds them accountable for their illegal actions. As such, Drug Court programs, Youth Justice Conferencing and Circle Sentencing should be more widely used in the criminal justice system to uphold the purposes of sentencing and punishment.
