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Easton & Piper: Sentencing and Punishment 2e

Chapter 10

Discussion questions

At the end of Chapter 10 we provided the following scenario:

Amy is a mother with four children under 10 years of age. The children's father, Ben, has been in prison for 2 years. Amy has several convictions for theft, all preceding the period in which she went to live with Ben and had her children. Amy got into severe financial difficulties 2 years ago and agreed to deliver packages of drugs, on a regular basis, to distributers. She was caught, pleaded guilty on a charge of possession with intent to supply, and received a sentence of 3 years. Ben's family have always rejected her; her own family consists of an ill and elderly mother and a sister who has two children. No one offers to look after the children and she agrees that they be voluntarily accommodated by the Local Authority. The pre-sentence report noted the children's distress in their new homes (they cannot all be accommodated in the same foster family). Amy appeals her sentence.

We then asked you to consider the following questions:

1. How might it be possible - if at all - for the Court of Appeal to justify a decision to substitute a community order for Amy's custodial sentence?

The Court of Appeal might refer to the Mills (2000) case (see Chapter 7 pp 219-220) to take into account the fact that Amy is the sole caregiver and is more likely than a male prisoner to be allocated to a prison a long distance away from her children. However, the Court will first assess the seriousness of Amy's offending - the harm done and her culpability - and may well decide that her offending was too serious for the Court to be able to take account of mitigation. On the other hand, the court may consider earlier appeal cases where the offender's family circumstances had been dire and the effect on the children had been excessive (see Chapter 10 pp 320-21) and substitute a lesser sentence. If the court considers the sentence of 3 years to be somewhat disproportionate and that a commensurate sentence would be only just above the custody line they may substitute a community sentence. Reported cases, however, show only a relatively small reduction in the length of the custodial sentence.

The following passage from a recent research report suggests that the courts are more likely to impose a suspended sentence with a supervision requirement than a community sentence if they are minded to avoid an immediate custodial sentence: 'The sentencing data suggest that the use of immediate custody for indictable offences committed by women has remained at a constant rate (17 per cent of sentences) and that the growth of the Suspended Sentence Order has been at the expense of the Community Order and the fine. There is no indication that the introduction of the new orders has had a significant impact on the courts' use of immediate custody' (Patel, S. and Stanley, S (2008) The Use for the Community Order and the Suspended Sentence for Women. London, Centre for Crime and Justice Studies, King's College London at p.35).

You might also wish to reconsider the arguments for and against the substitution of Amy's custodial sentence from retributivist and utilitarian points of view.

2. What solutions to this type of situation – other than at the sentencing stage – can you suggest?

In answering this question you might consider the provisions which could be made within prison to improve regimes for particular categories of offenders. In relation to Amy's situation this could involve implementing ways of improving contact with families for prisoners with dependent children. Similarly, for elderly prisoners, prisoners with health problems and those with disabilities, new ways of improving conditions in prison as well as changes in health care provision could be developed.

In relation to social and economic deprivation you should consider whether the problems caused by family circumstances, health, disability, etc. should be addressed by social rather than penal policies. For further information on prison conditions and their impact on specific groups of prisoners see Chapters 9 and 11.