Our volume now moves away from the theory and practice of mitigation and aggravation at sentencing to consider the views of the community. The next chapter, by Austin Lovegrove, reports findings from a project involving members of the public and judges in Australia. In this chapter we draw on a number of large-scale quantitative surveys to explore public attitudes to the factors that aggravate or mitigate sentence. The purpose of this essay is to describe recent research findings which illuminate public attitudes to a number of common sentencing factors. These results challenge the view that the public are inflexible, punitive sentencers with little interest in mitigation, and shed light on the model of sentencing to which many people subscribe.

CHAPTER OVERVIEW

The chapter begins by discussing some recent survey trends with respect to public attitudes to sentencing. We then discuss some reasons why we might want to know about attitudes to mitigation and aggravation. Some methodological caveats are issued; different approaches to measuring public attitudes will yield very different responses. This discussion is followed by a presentation of some specific research findings from a study involving a large, representative sample of the public in England and Wales. Finally, we draw some conclusions for the sentencing process.

This volume explores an under-researched yet fascinating domain in the field of criminal sentencing: the circumstances that may justify imposition of a harsher or more lenient sentence. At sentencing, courts must weigh a wide range of offence and offender-related factors in order to determine the severity of the sentence. Some factors influence the sentence by affecting the seriousness of the crime, others because they reflect a higher or lower level of culpability on the part of the offender. Mitigating and aggravating factors are often taken for granted by members of the public (and possibly some legal professionals) – we all have intuitions about whether factor X should result in a more lenient or a harsher sentence. Certainly, for many factors the relevance is obvious: committing an assault against someone while disparaging their ethnicity or religious beliefs obviously makes the assault more serious; there is an additional element of harm (contained in the affront to the victim’s identity). Similarly, if, immediately after committing the crime the offender assists the victim, apologizes for his conduct and makes amends, this justifies a more lenient sentence. But many problematic circumstances exist.

This final chapter draws upon the accumulated experience in different jurisdictions to propose ways in which community custody can be used to promote the purposes of sentencing, and attract the confidence of key criminal justice professionals (such as judges and prosecutors) as well as members of the public. These suggestions relate to the way the sanction is constructed, its range of application as well as its administration.

Locate the sanction on a scale of severity

Several steps are necessary to fix the position of the sanction on a scale of severity. First, the sanction must carry a clear ensemble of statutory conditions applicable to all offenders on the sentence. Second, although courts should have the discretion to impose additional conditions crafted to the individual circumstances of offenders, there should be limits on these discretionary conditions. Otherwise a judge could impose a raft of additional conditions and thereby move the particular sanction up the severity scale and rupture the principle of proportionality. These limits are also necessary to ensure that judges do not impose oppressive or demeaning conditions, that can be lifted only after a time-consuming delay associated with a review by an appellate court.

Third, a clear ratio should be established between time in custody and time on community custody. Judges have to ensure that the order is roughly commensurate in severity with the term of custody that otherwise would be imposed.

The nature of community custody requires careful elucidation. Although community custody regimes vary widely, they share many common elements, and all differ in important ways from terms of imprisonment in a penal institution. This chapter compares and contrasts community custody and institutional imprisonment. Imprisonment is exclusionary, destructive and anathema to the sentencing objectives such as restoration and rehabilitation. In contrast, community custody is an inclusive sanction; although carrying a punitive element, it also encourages rehabilitation and restoration. Community custody is also an active disposition; offenders are encouraged to use their time, rather than simply pass it in a prison cell. Indeed, through the use of specific conditions, many community custody orders compel this kind of active participation in the sentence. The ‘virtual prison’ therefore has the potential to offer much more than its institutional counterpart. Comparisons between the two sanctions must also address the following question: to what extent can community confinement promote the traditional goals of sentencing? The response to this question must perforce be comparative rather than absolute in nature. For example, how much more (or less) effective than prison, or the alternative punishments, is community custody? In this chapter I therefore examine the relationship between community custody and some of the traditional purposes of sentencing.

Many different models of community custody exist. No attempt will be made to describe them all; instead, a number of different versions will be examined, beginning with the conditional sentence of imprisonment created in Canada in 1996. The Canadian incarnation of community custody is particularly interesting as it represents one of the most ambitious forms of this sanction, with a broad ambit of application that includes offenders convicted of the most serious offences, including manslaughter and sexual assault. This feature of the sanction obviously increases the power of the sanction to reduce the number of admissions to custody, but also creates other problems. As well, the successes (and failures) of community custody as a sanction emerge most clearly with this model in this particular jurisdiction. The chapter is restricted to home confinement/community custody regimes pertaining to adults, although analogous sanctions exist in many countries for young offenders (e.g. Smykla and Selke, 1982). For the purpose of elucidation, the Canadian sanction is presented in some detail; for brevity, counterparts in other countries are summarized more succinctly.

Canada: conditional sentence of imprisonment

The conditional sentence of imprisonment was introduced in Canada in 1996, as part of a broader sentencing reform initiative (see Daubney and Parry, 1999; Roberts and Cole, 1999). Although Canada has had a suspended sentence for many years, this is the first time that a community custody sentence has been available to sentencers.

Although there is now an extensive literature on public attitudes towards sentencing, and alternatives to traditional imprisonment, most of this research focuses on alternative sanctions other than community custody: far less is known about public reaction to terms of imprisonment served at home. One reason for this is the relative novelty of this sanction in many jurisdictions. Researchers have explored public reaction to some elements of community custody, such as home detention, electronic monitoring, and curfews; this work sheds light on public opinion regarding community custody, and will be examined here. As well, researchers in Canada have surveyed the public with respect to the community custody sentence, with interesting results.

After discussing public reaction to alternative sanctions in general terms, this chapter explores the extent of public knowledge, and nature of public opinion regarding community custody. The research findings suggest that if community custody is properly conceived, and fully explained to the community, it is seen as a satisfactory substitute for institutional imprisonment for a wide range of offences. Public support for community custody seems to increase as the conditions imposed on the offender become more restrictive. However, for the present at least, the public appear to draw the line at using this sanction for the most serious personal injury offences. For these crimes, the public continue to regard penal sequestration as the only appropriate criminal justice response.