Opinion
ESCR 2006-0086.
May 25, 2006.
MEMORANDUM AND ORDER RELATING TO SENTENCING
1. Introduction. This matter was before the court for a change of plea and sentencing on May 23, 2006. After hearing, the court imposed concurrent sentences of straight probation for a term of 15 years with Level III Probation Supervision including specified conditions. Those conditions include restitution in the amount of $117,555.11, house arrest under electronic monitoring for a period of one year with permission to leave only to travel to and from work, scheduled or emergency medical appointments, random drug testing, full disclosure of all financial records throughout the course of probation and full access to any computers used by the defendant. The court ordered the defendant to submit to a payment plan for restitution to be developed in consultation with the probation department. The defendant is the sole caretaker for three young children one of whom has severe medical problems. The court was informed that the defendant was employed as a cosmetologist. The court approved a recommended repayment plan of $100 per month toward the outstanding restitution.
2. The sentencing process in this case. At the time the sentence was imposed, the court stated its reasons for the sentence on the record in open court after hearing from the parties. In keeping with the customary practice in cases in which the defendant is not in custody at the time of the sentence, it was left to the probation department to work with the defendant and her counsel to arrange for the prompt installation of the electronic monitoring system. This usually takes 48-72 hours to accomplish. Also, in keeping with the customary practice in cases in which the amount of the restitution is not in dispute, the court directed the probation department to meet with the parties and develop a payment plan for the court's approval. See, e.g., Commonwealth v. Yeshulas, 51 Mass. App. Ct. 486, 492 (2001). The court was aware from the statement of facts presented by the Commonwealth during the plea colloquy that in the past the defendant had lived in an expensive apartment and driven a luxury automobile. The court was further informed that at the time of the change of plea the defendant was living with her mother in a very modest apartment in Lawrence. The court was not informed and did not inquire into whether the defendant had ownership or control of any personal property, such as a luxury automobile or jewelry, that were acquired with any of the funds she was charged with stealing.
In sentencing a person convicted of a crime, but particularly in a case such as this in which a significant theft of public as well as private funds took place, the court has a responsibility to fashion a sentence that not only addresses the need to correct and deter the defendant from committing future acts of criminal wrongdoing, but to discourage others from engaging in such conduct as well. See generally Commonwealth v. Power, 420 Mass. 410, 413-414 (1995), cert. denied, 516 U.S. 1042 (1996), and cases cited (Judges have broad discretion when it comes to establishing the terms of probation); Commonwealth v. Ferguson, 30 Mass.App.Ct. 580, 586 (1991) ("In fashioning a disposition after conviction, a judge has discretion to consider a variety of factors and has wide latitude within the boundaries of the applicable penal statutes. The judge may take into account hearsay information regarding the defendant's behavior, family life, employment, and various other factors."). In establishing the terms of probation, the court must not only provide the victim or the public with protection against any harm caused by this defendant in the future and address the needs of the defendant, it must appreciate that in our public justice system every sentence is a message with the potential to contribute positively or negatively to the effort to deter others from committing crimes.
In the present case, for the reasons set forth below, the court believes that the decision to reject the Commonwealth's recommendation for a sentence of imprisonment to state prison was appropriate. However, the disposition ordered by the court was intended not only to fit the punishment of the defendant to the circumstances of the crime, but also to make a positive contribution to crime prevention. It failed to do this (up to this point in time) as a result of shortcomings for which I am solely responsible. The process by which the sentence was imposed and the restitution payment order was made were flawed. The court should have expressly directed the defendant to remain under house arrest until the electronic monitoring was installed (or to have arranged for its installation in advance of sentencing), and should have required a complete inventory of the defendant's property before setting the terms of repayment under a restitution order. I take full responsibility for these mistakes. They will be addressed in a manner that is consistent with the rights of the parties.
On May 25, 2006, the court entered an order calling on the probation department to conduct a further inquiry in connection with the restitution order based on published news reports that she may own or have access to a luxury automobile. This Memorandum is designed to supply guidance for the benefit of the parties and the Probation Department with respect to that inquiry by setting forth the factors that should be considered when making orders for restitution, and the process that should be followed.
3. Legal framework for restitution in Massachusetts. The public policy of the Commonwealth strongly favors restitution as an element of criminal sentences. "There is no question that restitution is an appropriate consideration in a criminal sentencing." Commonwealth v. Nawn, 394 Mass. 1, 6 (1985). AThe purpose of restitution . . . is to compensate the injured party for losses incurred as a result of the defendant's criminal conduct." Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001) (footnote omitted). In criminal cases, the sentencing judge has broad power to order restitution. "The judge's power to order restitution in a criminal case, such as this, derives from the judge's power to order conditions of probation under G.L. c. 276, §§ 87, 87A, and G.L. c. 279, § 1." Commonwealth v. McIntyre, 436 Mass. 829, 833 (2002).
Some general rules have been established by the Supreme Judicial Court.
Restitution is limited to economic losses caused by the defendant's conduct and documented by the victim. An order of restitution must be supported by facts and evidence. The procedure for establishing an order of restitution must be fair and reasonable. The defendant must have an opportunity to be heard and to cross-examine witnesses. The defendant is entitled to rebut the victim's estimate of the injury with the defendant's own experts or witnesses. Finally, the Commonwealth bears the burden of proving the amount of the loss by a preponderance of the evidence.
Commonwealth v. McIntyre, 436 Mass. at 834 (citations omitted).
The Legislature has endorsed this judicial authority by providing that victims of crime have the right in all cases,
to request that restitution be an element of the final disposition of a case and to obtain assistance from the prosecutor in the documentation of the victim's losses. If restitution is ordered as part of a case disposition, the victim has the right to receive from the probation department a copy of the schedule of restitution payments and the name and telephone number of the probation officer or other official who is responsible for supervising the defendant's payments. If the offender seeks to modify the restitution order, the offender's supervising probation officer shall provide notice to the victim and the victim shall have the right to be heard at any hearing relative to the proposed modification.
G.L. c. 258B, § 3(o). The procedure for collecting restitution is through the Probation Department. In most criminal cases, the collection of restitution will be governed by G.L. c. 276, § 92, which provides as follows:
If a person is placed on probation upon condition that he make restitution or reparation to the person injured by him in the commission of his offence, and payment is not made at once, the court may order that it shall be made to the probation officer, who shall give receipts for and keep record of all payments made to him, pay the money to the person injured and keep his receipt therefor, and notify the clerk of the court whenever the full amount of the money is received or paid in accordance with such order or with any modification thereof.
In cases involving the theft of motor vehicles or certain acts of fraud in connection with such offenses, there is a separate statute that requires restitution to be made in addition to any other punishment. See G.L. c. 276, § 92A. See also G.L. c. 152, § 14(3) (Anyone "who knowingly misclassifies employees or engages in deceptive employee leasing practices for the purpose of avoiding full payment of insurance premiums" is subject to criminal penalties including restitution.); G.L. c. 266, § 108 (Damaging or defrauding owner or insurer of a boat or vessel); G.L. c. 266, § 102A 2 (Costs associated with public safety response to possession or use of a "hoax device" that resembles an explosive device are recoverable as restitution if the responsible party is convicted of the crime); G.L. c. 269, § 14 (Restitution provided as a penalty in addition to imprisonment for conviction of making a threat that causes a school or building to be evacuated.).
Section 92A contains certain features that may by analogy be considered as providing guidance in non-motor vehicle related cases such as this. See Commonwealth v. Hastings, 53 Mass. App. Ct. 41, 43 (2002). For example, under § 92A, "[t]he term 'financial loss' shall be interpreted to include but shall not be limited to, loss of earnings, out-of-pocket expenses, and replacement costs. Losses due to pain and suffering are not financial loss. Restitution shall be interpreted to include monetary reimbursement, work or service, or a combination thereof. . . ." The statute also provides that "[i]n an extraordinary case such as indigency, the court may determine that the interests of the victim and justice would not be served by ordering restitution. In such a case, the court shall make and enter specific written findings on the record concerning the extraordinary circumstances presented which militated against the imposition of restitution." G.L. c. 276, § 92A. The statute further provides that in cases in which the amount of the restitution is in dispute, the court, "after conviction, [shall] conduct an evidentiary hearing to ascertain the extent of the damages or financial loss suffered as a result of the defendant's crime." G.L. c. 276, § 92A. Finally, the statute assigns to the court responsibility for determining "the amount and method of restitution. In so determining, the court shall consider the financial resources of the defendant and the burden restitution will impose on the defendant. The defendant's present and future ability to make such restitution shall be considered." G.L. c. 276, § 92A. The defendant has a right to seek a modification or recession of restitution if his or her circumstances change. "A defendant ordered to make restitution may petition the court for remission from any payment of restitution or from any unpaid portion thereof. If the court finds that the payment of restitution due will impose an undue financial hardship on the defendant or his family, the court may grant remission from any payment of restitution or modify the time and method of payment." G.L. c. 276, § 92A. Failure to comply with a restitution order is punishable as a contempt of court.
If a defendant who is required to make restitution defaults in any payment of restitution or installment thereof, the court may hold him in contempt unless said defendant has made a good faith effort to make restitution. If the defendant has made a good faith effort to make restitution, the court may, upon motion of the defendant, modify the order requiring restitution by: (a) providing for additional time to make any payment in restitution;
(b) reducing the amount of any payment in restitution or installment thereof; (c) granting a remission from any payment of restitution or part thereof."
4. Developing a payment plan for restitution. In cases such as this in which the total amount of the restitution is not in dispute, the task of developing a payment plan is usually carried out by the probation department in consultation with the parties. The Commonwealth may participate, but is not required to do so. The victims or their representatives should be consulted. If there are disagreements that cannot be reconciled, a hearing before the court should be scheduled. Neither G.L. c. 276, § 92 nor § 92A specifies the factors which should guide the Probation Department in developing a proposed payment plan other than it must "consider the financial resources of the defendant and the burden restitution will impose on the defendant. The defendant's present and future ability to make such restitution shall be considered." G.L. c. 276, § 92A.
Although federal law differs from Massachusetts law in some respects, see, e.g., 18 U.S.C. § 3664(f)(1)(A) (Under federal law, a restitution order must reflect the full amount of each victim's loss without regard to the defendant's ability to pay), the comprehensive federal statute on victim restitution offers some helpful guidance that may readily be incorporated into our own procedure. See Commonwealth v. McIntyre, supra, 436 Mass. at 832-33 (Court's has broad power to order restitution in criminal cases so long as the procedures it follows are "fair and reasonable.").
Under federal law, the defendant is required to submit an affidavit to the probation officer in accordance with the following standard.
(3) Each defendant shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant's dependents, and such other information that the court requires relating to such other factors as the court deems appropriate.18 U.S.C. § 3664(d)(2)(B)(3). In making a payment order, the federal statute provides that the probation officer should consider "(A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; (B) projected earnings and other income of the defendant; and 8) any financial obligations of the defendant; including obligations to dependents." 18 U.S.C. § 3664(f)(2).
Neither state nor federal law contains a formula to guide courts in balancing the various factors that come into play in order to determine a just order for the payment of restitution. In keeping with the stated purpose of the sentence in this case — to correct and rehabilitate the defendant and to deter others from the commission of crimes — I think a payment plan for restitution must involve regular monthly payments in an amount that "sting" the offender without depriving her of necessities for daily living and maintenance and support of her family. In addition, in a case like this, in which the defendant may have purchased or leased personal property, such as a luxury vehicle, with the ill gotten gains of her crime, those items must be converted and any excess funds dedicated to payment of the restitution.
5. Some observations on the use of probation versus incarceration in sentencing a convicted offender. In many cases that come before the court, including this case, the sentencing judge has been given discretion by the Legislature to impose a sentence of imprisonment in state prison, in a House of Correction or, instead, to place the defendant on probation. The sentence imposed in this case was lawful and within the non-binding guidelines developed by the Massachusetts Sentencing Commission pursuant to G.L. c. 211E, § 3. However, the parties and the broader community have a right, I believe, to know something of the court's reasoning in making choices about how to exercise sentencing discretion.
We are living in a time of upheaval and uncertainty in terms of sentencing law and practices. Last year, in United States v. Booker, 543 U.S. 220 (2005), the federal sentencing guidelines were declared unconstitutional. The year before Booker, the United States Supreme Court invalidated the sentencing guidelines established by the state of Washington (which are similar to the proposed Massachusetts guidelines) on similar grounds. See Blakely v. Washington, 542 U.S. 296 (2004).These path breaking decisions are but the latest in a series of constitutional rulings that follow from the principle, laid down in Ring v. Arizona, 536 U.S. 584 (2002) and Apprendi v. New Jersey, 530 U.S. 466 (2000), that the federal constitutional right to trial by jury means that when the United States or a State makes an increase in a defendant's potential punishment for the commission of a crime depend on a finding of a fact, the defendant has a right to have a jury find that fact beyond a reasonable doubt.
As important as the Booker-Blakely-Apprendi-Ring jurisprudence is to the nation's sentencing practices and the future of binding sentencing guidelines, of far greater significance is the national reexamination of the role of punishment in sentencing. It is assumed by many that the shift from indeterminate sentencing schemes to determinate sentencing schemes over the past 25-30 years, the latter characterized by greater use of mandatory minimum sentencing and longer sentences, account for the current trend in favor of declining crime rates. In other words, the decline in the rate of crime is assumed to be the result of our nation's get-tough policies in which judicial discretion is gradually replaced by prosecutorial discretion and mandatory minimum sentences. "All the evidence, however, suggests otherwise." Michael Tonry, "Obsolescence and Immanence in Penal Theory and Policy," 105 Col. L.Rev. 1233, 1243 (2005) (Analyzing the relationship between the prevailing public attitudes, theories and policies about punishment and crime control over the past 30 years; noting that the steady decline in police-recorded crime rates cannot be correlated with increased incarceration and longer sentences which only serve to increase sentencing disparity; noting that there is growing evidence that treatment and rehabilitation programs, when "well-targeted and well-implemented . . . can significantly reduce reoffending;" and that the time has come to develop a new paradigm for criminal sentencing; "the sooner we put aside the conventional views and wisdoms of the recent past in order to work in a new reality, the sooner new ideas about justice and new policies and programs reconcilable with them will emerge" [at p. 1270]); Hon. Richard Lowell Nygaard, "On the Philosophy of Sentencing: or Why Punish?," 5 Widner J. Pub.L. 237, 243 (1996) (hereafter, "Why Punish") (Drawing on the theories of Beccaria, Bentham and Romilly, Third Circuit Court of Appeals Judge Nygaard observes that public safety not punishment should be the foremost concern in sentencing; "[w]hy do we punish? The ugly truth is that we punish social offenders because it makes us feel good. We rationalize punishment by various means. But when the penological smoke clears, punishment is psychologically for the punisher. . . . [I]n the final analysis, basically we punish because it makes us feel good to get even."[p. 249]; "I suggest that the system can really neither call itself enlightened, nor consider itself productive, unless all criminal sentences take a view toward the future, towards change, towards correction towards safety. Penology must be redesigned so that society comes out ahead. We must have realistic, corrective sentences." [p. 267]).
The solution, according to Professor Tonry, is not a return to the policies of the 1970's.
In relation to punishment, the public is ahead of policymakers and penal theorists. The public resonance of retributive ideas and the public commitment to punitive policies has been changing for at least five years. . . . On the subject of punishment, in this place and in this time, the boundaries are wider than they have been for decades, and practitioners can be expected to range more widely within them than they have in the recent past. In many places, they already are. The proliferation of treatment-premised drug courts, the easing in many states of mandatory minimum sentence laws and the new diversionary programs from prosecutors are examples.
Tonry, supra at 1271-72.
When, as in this case, the Legislature gives the sentencing judge discretion to impose a sentence of incarceration or to use probation, the judgement must be made on the basis of some normative framework. For me, the view expressed by Lord Chief Justice Wolff, Chancellor of England and Wales, comes closest to expressing a sensible framework for the use of incarceration in sentencing.
[W]e cannot continue to dissipate such a large proportion of the available resources on the use of imprisonment where there are more effective alternatives. In future the use of imprisonment should be focused primarily on four situations:
1. Where imprisonment is necessary because the offender is sufficiently dangerous to make imprisonment essential for the protection of the public.
2. Where the crime is so serious that it can only be marked by a significant prison sentence.
3. Where what is needed (for example, in the case of significant white collar crime) is to mark the serious nature of the criminal conduct by a very short period of imprisonment in conjunction with other punishments. (This is often referred to as a 'clang of the prison door' sentence.)
4. Finally there is the situation where the crime itself does not make imprisonment necessary but it becomes necessary because an offender will not comply with other sentences.
Lord Woolf, The Lord Chief Justice of England and Wales, "Making Sense of Sentencing," The Sir Leon Radzinowicz Lecture, Cambridge Institute of Criminology (May 12, 2005) (Complete text is contained in Appendix).
The most recent data published by the federal Bureau of Justice Statistics suggests in our own country, we expend a far greater percentage of criminal justice resources on imprisonment than in England. For example, "[a]t midyear 2005 the Nation's prisons and jails incarcerated 2,186,230 persons" which represents a 12 month increase of 1.2% for the state systems and 2.9% for the federal system. Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2005 (Page Harrison and Dr. Allen J. Beck) (NCJ 213133) (May, 2005). "The one undeniable change in criminal justice policy is the dramatic and remarkably consistent increase in the rate of incarceration, which has more than doubled since 1985 to 490 per 100,000 people for all federal and state sentenced prisoners. The overall incarceration rate, including both sentenced prisoners and pretrial detainees, stands at 702 per 100,000 people and is the highest in the world." Hon. John A. Bozza, "Judges, Crime Reduction and the Role of Sentencing," Judges Journal 23, 27 (Winter, 2006). As United States Supreme Court Justice Anthony Kennedy put it in his August 9, 2003 speech to the American Bar Association, "[o]ur resources are misspent, our punishments too severe, our sentences too long." And, as Justice Kennedy cogently pointed out, we are presently spending over 40 billion dollars per year simply to house, feed and care for a prison population that continues to grow larger and older.
The size and cost of our staggeringly large prison, house of correction and jail population compared to almost every other civilized country in the world and the enormous social consequences of the policies that maintain and perpetuate it is a subject that extends far beyond the scope of this decision. Suffice it to say that if the Legislature gives the sentencing judge a choice between a sentence of incarceration and a sentence of probation — probation as it is now managed with strict supervision by professionals governed by policies designed to hold offenders accountable for noncompliance, as contrasted with incarceration at a cost of $25,000-$35,000 per year — I believe the burden should be on the proponent of incarceration to demonstrate that it is necessary to prevent the offender from committing crimes in the future and to deter others.
6. The disposition in the present case. The defendant engaged in a series of schemes to steal clothing from her former employer, Victoria Secret, and to defraud agencies of the state and federal government of funds intended to assist indigent and low income persons. She did so over several years time and used the funds generated by her criminal activity to enjoy a higher standard of living than she could afford. She has a prior offense for a theft related crime as well. She is a single mother with three young children, one of whom has a serious medical condition. What should the objective of the sentencing judge be? The government argues that she "deserves" to be punished by imprisonment in state prison, only imprisonment in these cases will discourage others from turning to theft, and she should be made to repay the money she stole. Retribution is certainly encompassed by the notion of "just punishment" as that term appears in our sentencing statute. See G.L. c. 211E, § 2(3). However, the Massachusetts legislature has also recognized the value of alternatives to incarceration by establishing the Office of Community Corrections "to ensure and promote public safety by developing community corrections programs for appropriate offenders." See G.L. c. 2111E, § 2(a). From my experience over more than 15 years of service in the district and superior courts, I share the view that "[d]eterrence thrives upon fear of detection, but unfortunately, few criminals are afraid of detection or punishment." Why Punish, supra at 258.
Instead of focusing on punishment, "[w]e must divert the function of sentencing from the desire to do 'to' the transgressor. We must combine the social control we have over the sentenced individual with the goal of creating self-control. The goal of all sentences should be to transform the offender's behavior so that it conforms to our socially selected cultural norms and to require that the offender exhibit a culturally accepted level of self-control before he is permitted to reintegrate into society." Why Punish, supra at 258. A focus on correction and crime prevention presents a huge challenge. Again, Judge Nygaard has pointed the way. In a 1994 speech to the Pennsylvania Bar Association he made this observation.
Judge Michael Marcus of Oregon is a leader in the movement toward what he terms "Smart Sentencing." He believes that "[a]ll sentencing hearings (as well as pretrial release, post conviction supervision, and custodial curriculum decisions) should be based on readily available data about which sanctions and programs seem to work on which offenders. "What works?" should be the question routinely addressed by advocates and judges who have ready access to operational data to help answer that question. All involved should be able to run queries to determine how offenders who are like the subject have fared after being sentenced to any of the sanctions (custodial and otherwise) available for that offender, with success measured by various standards — but all keyed to reduced criminal behavior. And advocates should be expected to bring research to the task of sentencing." Judge Marcus has developed a web site and a program in the state of Oregon dedicated to assisting judges, lawyers, and court professionals to better understand the underlying causes of criminal behavior so that sentences can be tailored to better address them in order to minimize the likelihood of future criminal conduct. See http://ourworld.compuserve.com/homepages/SMMarcus/whatwrks.html.
Judge Marcus makes it clear that his approach does not mean that judges should abandon the use of imprisonment. "[w]e have pretty good information that jail and prison (at least without unusually good programming) do not generally reduce recidivism (and may even increase it) after an offender is released, and the opponents of incarceration often cite the literature to argue that community based treatment is almost always the best disposition. But the only fair comparison is the impact in terms of crime reduction from the time the sentence is imposed, including any period of incapacitation. After all, incapacitation is generally the most effective thing we can do to reduce crime in the short run — or as long as the incapacitation continues. The trick is to compare (legally available) dispositions with and without jail or prison side by side and examine which serves crime reduction best in the long run. Our tools show that for some cohorts short or no incapacitation correlates more highly with crime reduction, and for others longer jail or prison sentences correlate more highly with crime reduction. For those who fear that this approach inherently favors jail or prison, rest assured that for most minor offenders, it does not — even though jail or prison presumably prevents recidivism while the offender is inside. Again, to be responsible about public safety, we must insist at least that we know what has worked best in the past without some bias for or against jail or community based dispositions."
With our present state of knowledge, we may not be close to fully understanding the combination of factors that contribute to criminal behavior, and may lack the tools to fashion sentences that are calculated to address each of them in order to bring about a genuine change in the offender's behavior. And in view of the paramount importance of protecting victims of crime and the public from future victimization from dangerous offenders, Incarceration will continue to play an important role in sentencing. However, choosing a sentence of incarceration simply because a prosecutor or a victim says it is deserved is shortsighted and a poor utilization of limited resources. The question should be is incarceration necessary to protect the victim or the public? If the answer is "no," we should use the knowledge we have gained about what works and what does not work to fashion a sentence in which the offender is controlled and subject to corrective actions in a community based setting.
I suggest that criminals be treated like dreaded diseases and examined just as closely to see what caused them to err. We must "discover" why one commits crimes before we set about in any deliberate fashion to develop appropriate remedies. Getting "tough" on crime sounds good, but standing alone as it does now, it is an empty slogan that does not work. I have nothing against tough remedies. I do not make a plea of mercy for the criminal, but for society. Let us be practical. It is time to also get "smart" on crime. We must study the motives that produced the offense, with an eye towards the future and prevention, not towards the past and punishment. As Thomas Fuller said centuries ago, "To punish and not prevent is to labor at the pump and leave open the leak."
Do not misunderstand me: no one wants to be punished. So any punishment has corrective value for some. But it is painfully obvious that punishment, as now administered by the American penal system, is not enough. Beyond punishment, we must discover what inside this individual makes him socially tick so that we can design a system that will effect change.
I believe we should move towards a system of correction that is organized along the same lines as our triage system for treating the wartime wounded. I believe we must segregate our thinking, our treatment, and our sentencing into at least three discrete groups: the benign for whom nothing need be done, the truly dangerous for whom nothing can be done, and those for whom the expenditure of some effort may effect change.
As Michel Foucault said, "Even the shallowest emotions and the weakest intellects can meet and master punishment; few can confront change." Rehabilitation? Perhaps we should dust this concept off and try it again. I am not talking about the goody-goody rehabilitation of the fifties and sixties. I do not bleed for the criminal. I bleed for the society which must reassimilate him after he has served his time. What I propose is real, honest-to-goodness, sincere, no nonsense, severe if necessary, attempts to say to this person in a way he cannot ignore, "You are all screwed up and we are going to change your mind. You must convince us you are capable of living in society, or you are here until you do." The sentenced individual must be made to realize that he must change in such a way that society remains safe, or know that he will not be reinculturated at all. The key to behavioral change lies with the individual — whether we are treating alcoholism, drug addiction or antisocial behavior.
Hon. Richard Lowell Nygaard, "The Myth of Punishment: Is American Penology Ready for the 21st Century?," 5 Regent U. L.Rev. 1, 9-10 (1995).
With these thoughts in mind, it was my judgment that the best and most cost effective way to control and correct the defendant's behavior is by the imposition of probation with strict conditions. In place of the "clang of the prison door," to borrow a phrase from Lord Chief Justice Wolff, the defendant will be required to remain under house arrest, monitored electronically, for a period of one year. She may leave her home only to travel to and from work and court, and to scheduled or emergency medical appointments. She is subject to random drug testing monitored by the probation department. She must turn over to probation, at their request, any and all financial records and give the probation department access to any computer she may use. She will have to maintain employment and learn to clothe and feed her three children and meet her other needs on the salary she earns without the addition of monies derived from illegal activities. And, she will feel the "sting" of a monthly payment towards her restitution obligation for the next 15 years. Her failure to comply with these conditions or any violation of the law will subject her to imprisonment in state prison for up to the maximum sentence permitted by law. To the extent that anyone considers what happened to the defendant in this case and what her life will be like for the next 15 years as they make decisions about their own conduct, I believe they will be discouraged from following in her footsteps.
ORDER
For the above reasons, so much of the order for restitution in this case as requires the defendant to pay the sum of $100 per month is vacated. The defendant shall prepare and file with the probation department an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was charged with these offenses, her financial needs and her salary and earning ability and the sources of any financial assistance she may be receiving or entitled to receive. Any personal property owned, leased or controlled by the defendant that was acquired with funds obtained as a result of the commission of any of the crimes for which she has pled guilty must be converted into cash, if possible, and dedicated to payment of the restitution. If such property cannot be converted, a written statement of the reasons why must be filed with the probation department. After receiving this information, the probation department should confer with the Commonwealth and the victims, if they wish, and develop a proposed payment plan that involves regular monthly payments of restitution by the defendant in an amount that "stings" the offender without depriving her of necessities for daily living and maintenance and support of her family. If there is an agreement among the interested parties, the proposed payment plan may be submitted to the court without a hearing. Otherwise, the matter will stand for a hearing.
There is no guarantee that this defendant will be capable of fully repaying the full amount of the restitution over the course of her 15 years on probation. However, if she pays a substantial amount of restitution over the course of her probation and otherwise complies with the remaining conditions of probation, she will have been punished severely without the taxpayers being forced to pay an additional bill for her criminal conduct and her children being punished for the misconduct of their mother.
APPENDIX
Speech by Lord Woolf The Lord Chief Justice of England and Wales Making Sense of Sentencing The Sir Leon Radzinowicz Lecture Cambridge Institute of Criminology 12 May 2005
Introduction
I am deeply honoured to be the first Fellow of the first Fellowship established to celebrate the contribution to Criminology of the first Director of the First Institute of Criminology in the UK, Sir Leon Radzinowicz.
I must confess that I have reached the stage of life when I find it mildly encouraging that it was in 1998, Sir Leon published his last work on Criminology (Adventures in Criminology). He was 92 years of age. He did so after he had devoted his life to the subject. Surely, with this experience the celebrated father of Criminology in England would be able to provide all the answers. Alas, no, Sir Leon acknowledges that there is no single key to unlock the door either as to what causes crime or what are the cures for crime. Sir Leon was too wise to speculate on the answers.
You will not be surprised to learn that where Sir Leon feared to tread I am not intending to rush in. Instead I am going to set myself a more modest but still a very important task and that is to identify the action that could be taken over the next four years to achieve, in the interests of the public, a more effective and strategic approach to sentencing. I am speaking out because it is timely for me to do so because the government is in the process of determining what should be, for the next four, years its policy as to sentencing.
This is the right place to address these issues because this lecture is part of the celebrations to mark the opening of this magnificent new resource for criminology (an often neglected subject) and the right audience because criminologists have an important contribution to make to achieving the improvements that are needed to the criminal justice system.
While I am focussing on sentencing, I emphasise that real progress can only be made if criminal justice is treated as a whole. It is the judges who determine sentences within the framework provided by Parliament, but the police and the CPS decide who come before the courts and the judge needs the help of the advocates to identify the most constructive sentences. It is also critical what happens to the offender after the sentence. Here I welcome the establishment of the National Offender Management Service or NOMS as it should enable the Prison Service and the Probation Service, by working jointly as a single unit, to achieve more than they could separately.
We also know that the Government should be able to make a running start because the Departments of State most involved in the CJS are under the same leadership, Mr Clarke, Lord Falconer and Lord Goldsmith. They have each, together with their distinguished predecessors, helped to bring us to where we are now.
I can identify straight away what I would like their further contribution to be:
They should identify the resources that can be made available to support our sentencing policy for the next four years and then tailor their policies to match the resources available.
In the past policies have been embarked on without sufficient attention being paid to whether or not the resources (I am not only referring to financial resources) are in place to enable the policy to be successfully implemented.
In addition, the government should recognise that what is needed now is a period of consolidation. The system has reached the limit of the amount of change it can, for the time being, absorb. There is the need before implementing a new sentencing policy for there to be wide consultation with all those with a relevant practical and academic experience.
An Art or A Science?
This is not an expression of judicial conservatism. For the government to exercise the restraint in legislating I have suggested would be a radical change in government policy towards criminal justice.
The government should decide to exercise a self denying ordinance and declare a closed season on sentencing legislation. I understand the desire to respond to public reaction over the latest horrendous crime. However, to resist this pressure would make a significant contribution to achieving the real gains that the government and judiciary would like to see.
While criticism of the judiciary is not confined to sentencing, it is the judicial role in relation to sentencing which creates the most public controversy. The man on the Circle line will not second guess a judge's interpretation of a statute or a judgment awarding damages, but he does not hesitate to disagree with a judge's decision as to what is the appropriate sentence for a prisoner to serve. I make no complaint about this since I accept that there are no absolutes when it comes to sentencing; unless Parliament has made mandatory the sentence which should be imposed for a particular crime.
There are jurisdictions where effect is given to what I have just said and juries are given the task of determining the sentence, subject to limited rights of appeal. This happens even when what is at stake is whether the prisoner should be sentenced to death. This, it is said, is the democratic solution.
In this country we have chosen a different route. We give the task of finding the right sentence to magistrates and judges. We then place them under constraints that mean they are not entitled to pick a sentence out of the blue. First the maximum sentence for any offence is established by Parliament. Within that statutory limit the sentencing judge must consider where in the scale of gravity the crime with which he is concerned fits into the extensive frame work of sentencing for the whole range of crimes. To perform this task there has to be a careful analysis of the facts of the particular offence and this must take into account the consequences of the crime to the victim and any mitigating circumstances relating to the defendant.
Consistency is important and that is why the judge has to find the right pigeon hole in the complex structure I have identified, but the judge must, when the circumstances in the judge's opinion justify this, be prepared to impose the unconventional sentence if this is what the case requires. Judging must never be mechanistic.
While therefore the judiciary should take into account public opinion and criticism from whatever source it comes, and I include here the media, the police and politicians, they must in the end do what is their duty which is to determine what is the correct sentence irrespective of the criticism to which this may give rise. It is the judge who will know all the facts and have the training and experience to enable him to determine what is the most appropriate sentence in all the circumstances and his decision should be treated with the appropriate respect because of this.
It is sometimes said that sentencing is an art and not a science. Today, I prefer to say that sentencing is part art and part science. A judge has to combine both to achieve what are today the purposes of sentencing.
The Purposes of Sentencing
Those purposes are now set out in the Criminal Justice Act 2003 which radically revised the approach to sentencing. The Act was the culmination of 2 fundamental and distinguished reviews of the CJS; the Auld Report and the Halliday Report. The Carter Report, which came after the Act, has also made a valuable contribution in this area.
The Act provides the focus for what I am discussing this evening. It sets out the purposes of sentencing as being (s.170 of the Criminal Justice Act 2003):
a. the punishment of offenders,
b. the reduction of crime (including its reduction by deterrence),
c. the reform and rehabilitation of offenders,
d. the protection of the public,
e. the making of reparation by offenders to persons affected by their offences.
These purposes are enlightened and should be uncontroversial. I accept that punishment should head the list but I applaud the attention that is given to the other purposes.
The extent to which we have been successful in achieving these purposes is also not controversial. Regrettably, we have not been doing as well as we should. I start with imprisonment because, although prison is also meant to deter, its primary purpose is to punish, the first statutory purpose. According to the most vociferous elements of the media, we should be sending more people to prison for longer.
This is despite the fact that the number of those sent to prison and the length to which they have been sent has been regularly increasing over a great many years. At the time of my Strangeways Report 14 years ago, the prison population was 42,000 and falling, while today it is 76,000 and forecast to rise. This is apparently wholly contrary to public perceptions, who believe that the courts are unduly lenient. There has been an increase in punishment right across the board.
The issue is not whether we need imprisonment. We do, it is essential. It is one of the ways society can and should demonstrate its disapproval of serious crime. While an offender its serving his or her sentence it protects the public from further crime. However, even as a punishment it has limitations. Once the prisoner has become use to the clang of the prison door prison makes little demand on most prisoners.
Positive steps in tackling offending behaviour can be taken in prison but they are able to be more successfully taken outside prison. A primary cause of prison sentences not being used more constructively is prison overcrowding. While overcrowding persists, it frustrates the ability of the Prison Service to deliver the contribution it could otherwise make to reducing crime and protecting the public by reforming and rehabilitating offenders. It is the primary explanation of why our prisons are not working better. Let me give some examples of the cancerous effects of overcrowding.
It is not easy to establish gainful employment in prisons and when they are overcrowded this almost impossible.
The Prison Service is justifiably proud of what it can achieve through its educational programmes. However the achievements could be greater, if it were not for the impact of overcrowding. The Prison Service are making ever greater efforts to ensure satisfactory arrangements are in place for the release of prisoners. If an offender is returned to society at the end of his sentence with increased skills, a job to go to and accommodation, the risk of that offender re-offending is significantly reduced. But again this is extremely difficult to achieve if an offender is being detained in a prison far from the community to which he belongs as a result of what is described as 'churning' within the prison system.
This is one of the reasons that I recommended in the report into the Strangeways Prison riots, and have continued since to advocate; the establishment of community prisons. A community prison has the advantage of the offender retaining his links with his family and the community to which he belongs. Although many governors tried to take this concept forward it is really not a practical prospect in current circumstances.
The Home Office in answer to my concerns about prison overcrowding will point to their prison building programme and I have to accept it is impressive. I do so with regret because it is hugely expensive but even if it is achieved it cannot hope to match the increase in prison numbers that the Home Office itself expects.
The present position just does not make sense. This is certainly not due to a lack of expenditure.
According to the annual reports of the Prison Service for 2002/3 and 2003/4, the net expenditure on the prisons alone for the earlier year was £2405 million and for the later year, £2105 million. In addition, there was capital expenditure of £244 and £283 million. There is to be added to these figures, the cost of the private prisons. There is also the cost of probation services. These are huge resources and the question must be asked are we deploying them in the most advantageous manner? If we are not, then we must ask why not?
The justification for this emphasis on ever increasing use of imprisonment is that this is, so it is said, what the public demands. It is unfortunately the case that we have failed to persuade the public that there are many situations where community punishments can be more constructive in achieving the statutory purposes of sentencing than imprisonment.
They are not an unconstructive let-off. Those who prefer the increased use of the custodial option are not apparently deterred by the fact that the cost of actually keeping the prisoner within prison averages roughly £37,500 per year.
However, from time to time I speak to victims and their families. When I do so I do not find that they are as unreasonable and as insistent on incarceration as the media suggests. Very few are crying out for the implementation of the biblical admonition 'an eye for an eye and a tooth for a tooth'. Surveys have shown that the public's perception is that the courts are much more lenient than is in fact the case. That when the public are told what are the actual punishments imposed, they are genuinely surprised at their severity.
What will shock members of the public and victims is how unsuccessful we are at preventing re-offending. Here, the information provided by the Social Exclusion Unit in their report of 2002 is deeply disturbing. The figures speak for themselves.
The cost of re-offending by ex-prisoners is £11 billion per year and around 58% of prisoners are reconvicted within two years from their being released (the latter figure having remained approximately constant for 15 years).
The story is not entirely bleak and there has been a significant drop in crimes of certain kinds. In general, however, we seem to be trapped in a vicious circle of offending, punishment, release after serving the sentence, and re-offending.
How then do we break the vicious circle? Well I believe that the prospects of doing so are better now than they have been, at least over the period that I have been a judge. Let me explain why I am of that view:
1. Parliament has told us what are the objects of sentencing,
2. There is a greater realisation than there has been hitherto, that short prison sentences are not constructive and should only be used as a last resort.
3. Our approach to juvenile offenders has been transformed by the establishment of the Youth Justice Board. The focus on offenders under 18 has been producing positive results. It shows is that a more coordinated approach does produce results. Accordingly it is intended that what has been achieved by the Youth Justice Board in respect of young offenders should be extended to 18-20 year old offenders.
4. The same is true of women offenders. There has been a particularly sharp rise in the number of women offenders, particularly in connection with drug related crime. There is a growing appreciation of the importance of addressing their specific needs.
5. The position is the same in the area of those with mental health problems. It makes obvious good sense to tackle the substantial number of prisoners who have mental health problems in a more appropriate setting than prison.
6. Then there is the piloting that is taking place on restorative justice projects. As this audience will know, restorative justice involves offenders taking responsibility for their crime and for making amends to their victims. Restorative justice in this jurisdiction is still in its infancy. However, those who have been involved are convinced that it has significant potential to make a difference. An impressive pilot involving the London Crown Courts has been quietly taking place with the support of the Home Office and an inspirational American Criminologist Professor Lawrence Sherman. It is too early yet to establish with any degree of certainty that restorative justice reduces re-offending. However, what can be said is that it certainly is beneficial to victims. Victims should not be compelled to take part, but many of those who do, find it significantly ameliorates the damaging effect of what happened to them. I know from my own experience of having to reconsider the tariffs in respect of juvenile offenders detained during Her Majesty's pleasure that this can be true even in relation to the gravest crimes.
7. Then, there is the contribution that can be made to sentencing by technology. The ability to create some of the advantages of a custodial sentence by the use of electronic tagging is undoubtedly an important development. I emphasise that this is not the only contribution that technology can make.
8. Finally, there is now much closer consultation between the Home Office and the judiciary on legislative proposals and changes in government policy as to criminal justice. The judiciary have set up a separate committee (the Rose Committee — named after its Chairman, the Vice President of the Court of Appeal) to achieve this. This assists in ensuring legislation will work in practice.
So from this more encouraging base, I return to the Criminal Justice Act 2003. Many of its provisions dealing with sentencing only came into force last month.
They raise the possibilities of a more focussed role for sentencing. Constructively used they could increase the public's confidence in community punishment and help achieve a breakthrough in the undue reliance on imprisonment. Many of the provisions contained in the Act, if they are to achieve their purpose, will require a huge injection of resources in support of the community punishments.
I recognise that those resources are going to be hard to find and this means that it is essential that we have a very hard look at whether it really is necessary in the interests of the public to rely increasingly on imprisonment. I am confident this is not necessary. The Government should make it clear that as a country we cannot continue to dissipate such a large proportion of the available resources on the use of imprisonment where there are more effective alternatives. In future the use of imprisonment should be focussed primarily on four situations:
1. Where imprisonment is necessary because the offender is sufficiently dangerous to make imprisonment essential for the protection of the public.
2. Where the crime is so serious that it can only be marked by a significant prison sentence.
3. Where what is needed (for example, in the case of significant white collar crime) is to mark the serious nature of the criminal conduct by a very short period of imprisonment in conjunction with other punishments. (This is often referred to as a 'clang of the prison door' sentence.)
4. Finally there is the situation where the crime itself does not make imprisonment necessary but it becomes necessary because an offender will not comply with other sentences.
The alternative is to continue with the overcrowding that reduces the effectiveness of prison and rely increasingly on executive release to avoid the prison system exploding as it did at the time of Strangeways.
Let me see how those four instances fit in with how I believe some of the provisions of the 2003 Act should be approached. I start with the provisions of Chapter 5 that apply to dangerous offenders.
Chapter 5 of the Act creates a new sentence of 'imprisonment for public protection'. This is a sentence that has most of the characteristics of a sentence of imprisonment for life. It extends to a great many offences, including motoring offences that are punishable with imprisonment of 10 years or more. This range of offences is excessive.
Where the conditions identified in the Act are satisfied, imprisonment for public protection is mandatory. The sentence is for an indeterminate period and can involve the person sentenced remaining in detention after the period necessary for punishment and deterrence has been served, unless the Parole Board is satisfied that it is safe for that person to be released. Furthermore even if the person is released, the release is on licence, with a consequential risk of recall.
The key to this sentence is a requirement that there should be 'a significant risk to the members of the public of serious harm occasioned by the Commission of further specified offences.' Courts will have to evaluate whether there is such a risk.
Such a sentence is highly controversial and if it is to accord with acceptable principles the courts must restrict its use to cases where there really is such a risk. In doing this courts will be assisted by reports from the probation service. Those reports already as a matter of course give the opinion of the probation officer as to whether there is such a risk. However, the probation officer's assessment is not an assessment necessarily based upon his or her personal knowledge of the offender.
The sentence, in due course, will require a massive injection of additional resources for the Parole Board. The Parole Board is already involved in using more resource intense procedures than was the case in the past to determine whether a life prisoner should be released. This is because of decisions of the European Court of Human Rights (ECHR) that make it clear that this is necessary if its procedures are to comply with Article 5(4) of the ECHR. In future the hearings will have many of the trappings of a trial. The days when decisions on parole were based on a paper exercise, are gone forever.
The cost of the Parole Board hearings is going to become a significant additional expense for the Home Office. In addition, it will place demands on judicial resources which it will not be easy to meet. The demands created by the new sentence, will have to be accepted. Otherwise the new sentence of detention for public protection could breach basic requirements of justice.
This innovation meets my first justification for the use of prison but it adds to rather than reduces the burden on the Prison Service. More positive aspects of the 2003 Act exist in relation to other new sentences.
In the case of sentences of less than 12 months, there is the innovation of 'custody plus', a sentence combining a short period in custody plus a period on licence with a wide range of licence conditions. This can be used in a 'clang of the prison door' situation.
There is intermittent custody which should enable a sentence to be custodial yet not interfere with the offender's ability to keep employment.
There is also a substantial improvement in the range of requirements that can be attached to a Community Order. There is the innovative requirement of unpaid work and there is an activity requirement that as its name suggests can require the offender to perform activities by way of reparation. Both these orders overcome the difficulties which can exist because of the offender's lack of resources to make amends otherwise. There are accredited programmes involving, for example, undergoing training. Finally there are the prohibited activity requirements, curfew requirements, exclusion requirements, residence requirements, and possibly most important of all, mental health treatment, drug rehabilitation and alcohol treatment requirements. Electronic monitoring can then be used for ensuring compliance.
This cocktail of requirements should go a long way to establishing a greater acceptance among the public of community sentences if, and only if, the orders are vigorously supervised and enforced.
I attach particular importance to the unpaid work requirement. One of the changes that has taken place in sentencing is the reduction in the use of a fine. This is a surprising development in the age of consumerism. The reduction in the use of fines is, I believe, at least in part attributable to a lack of resources of offenders and in part to a loss of confidence in fines due to lax enforcement. Enforcement is now being tackled and now the inability to pay can be met by an unpaid work requirement. In addition, more can be done to make it worth the offender's while to pay fines promptly. We mitigate sentences by allowing prisoners parole. We should do the same for fines by allowing a reduction for prompt payment in accordance with the order of the court, whether payment is due by a lump sum or instalments.
The increased use of fines should be matched by the vigorous pursuit of the confiscation of the proceeds of crime from offenders who commit crime for acquisitive purposes.
These new community sentences could make the critical difference. However we have to be on our guard against squandering any improvement. We must not take inappropriate action in other areas to meet popular demands for unjustifiable use of imprisonment in the case of offences where there are unintended but tragic consequences because of momentary inattention. Here there is a need to bear in mind Sir Tony Bottoms's wise comments 'the difficult task for policymakers is to recognise and build on modestly promising results of this kind, rather than succumbing to unrealistic demands for instant dramatic success stories'.
Sentencing Guidelines Council
Having established this new range of offences it was fortunate that the Act also created the new Sentencing Guidelines Council. Its task is to provide authoratitive guidelines to courts on the level of sentencing, to enable sentencers to make decisions on sentencing that are supported by information on the effectiveness of sentences and on the most efficient use of resources. The Council is required by section 142 of the CJA 2003 to take into account:
1. The need to promote consistency in sentencing
2. The sentences imposed by Courts to which the guidelines relate
3. The cost of different sentences and their relative effectiveness in preventing re-offending
4. The need to promote public confidence in the criminal justice system.
The Council is also required to take into account the views of the Sentencing Advisory Panel.
Unlike the Court of Appeal, which had to wait for suitable cases, the Council can be — and is — pro-active in preparing its guidelines. Again, unlike the Court of Appeal, the Council does not need to confine a guideline to a particular offence or series of offences.
A guideline can be generic. Examples of this were last year's guidelines produced for reduction in sentence for guilty pleas and the critical question of seriousness.
The first guideline prepared by the Council dealt with the reduction in sentences for pleas of guilty. For many years, the courts had been in the habit of giving credit for a plea by reducing the sentences of those who plead guilty. The guidelines were only consolidating existing practice and establishing an open and clear structure which would encourage a more consistent response to a statutory obligation.
However, despite this, when the draft was first published, there was a hail of protest from many quarters who thought the guideline was a novel way of reducing sentences, the prison population and the proper reflection of the seriousness of offences, in particular in murder. However, after the consultation process had been completed, when the final guidance was published, the guideline was welcomed.
That the guideline was modified as a result of the consultation process illustrates how the Council intends to operate.
Crimes vary in their seriousness both because of the type of offence involved and because of the gravity of the particular offence. Guidance as to how to approach this is provided by the seriousness guideline. It establishes relative culpability, identifying general aggravating and mitigating factors and the approach to determining whether an offender has passed the community order or custody threshold.
In view of the scale of the changes made by the 2003 Act in relation to sentencing, it was decided that every judge who was engaged in sentencing should receive training from the Judicial Studies Board at a residential course. To assist in that training, the Council provided guidelines as to the preferred approach to the new sentences. The guideline is concerned with striking the right balance between the seriousness of the offence and the sentence most likely to prevent re-offending as well. In addition, guidelines dealt with the new release provisions for custodial sentences over 12 months which are set out in the 2003 Act.
In this way the Council is building upon the previous current sentencing guidelines cases. While this could take time to achieve because of the scale of the activity involved, in due course, there should be available to sentencers a code of guidelines.
The Council has also published a compendium of still relevant guideline cases. Copies of the compendium have been distributed to all courts. In addition it is included in the manual for legal advisors in Magistrates' Courts published by the Justices' Clerks' Society.
Over a period of time, the influence of the guidelines issued by the Council should be significant. An advantage of the guidelines is that in accordance with their statutory obligation, the Council must take into account the cost of different sentences and their relative effectiveness in preventing re-offending.
The Relevance of Cost
This brings me to a subject upon which there is still considerable debate. That is the extent to which the courts should take into account the resource implications of their sentences.
Those who argue that a court should not take account of resources, contend that once a court has decided on the just sentence, it is the responsibility of the Government to ensure that the sentence is implemented. To curtail the sentence because of lack of resources is seen as a way of allowing the Government to escape its responsibility. However, this approach assumes that there is only one 'just sentence' and unlimited resources. Both assumptions are wrong. While I consider, unsurprisingly, that more resources need to be devoted to criminal justice, I recognise that the criminal justice system is in competition with, for example, education and health for resources.
This is why it is essential that the resources that are available are used in the most effective way. If a community sentence, which is far less expensive, would be suitable for an offender, as a punishment for his crime and it would be constructive, it is wrong in principle to send him to prison. If there are no resources for drug treatment and training orders, it is pointless imposing such orders. The Council is required to take into account the cost effectiveness of different sentences in the drawing up of guidelines. Since courts are required to take into account the guidelines issued by the Council when sentencing, the courts indirectly are required by Parliament to do the same.
It is wrong to say that to tailor sentences to the resources, is to allow the Government off the hook. The courts and the senior judiciary are quite capable of drawing attention to the effect of lack of resources.
What I have said about restricting the increase in the use of prison is not only based on resources. It is based also on the fact that if there is a properly resourced community punishment that is a suitable alternative, the results of such a sentence are more likely than imprisonment to be in the interests of the public.
The position will remain that where resources are most urgently needed, is for the Probation Service, now part of NOMS. The Probation Service is the key to tackling re-offending. This is so whether we are considering the person who is sentenced to a Community Sentence or the person who has been sentenced to imprisonment and is returning to the community. The role of the Probation Service is critical. We have to raise the standards of the Probation Service. The first priority is to improve their morale and effectiveness.
We now have more police. As a result more offenders are going to come before the courts. The courts in coordination with the other criminal justice agencies are providing a more effective service to victims, witnesses and defendants during the trial process. We must now tackle what is not being achieved by sentences that the courts impose. We must make inroads into the abysmal re-offending rates.
Success in doing this could transform the situation. Our efforts must not be deflected by the protests from those who ignore the reality of the situation we are in.
It follows that my recipe for bringing sense into sentencing involves:
1. Developing a consensus as to what resources should be available to the criminal justice system and ensuring that those resources are used in the manner which is most likely to provide the best protection for the public.
2. Using the platform that Parliament and the Government have now provided to halt the continuing rise in the use of imprisonment and instead confining imprisonment primarily for the most serious offences and, in particular, for violent and dangerous offenders;
3. Making the broad range of community punishments really meaningful so that they prevent re-offending and inspire confidence in the public;
4. Providing more extensive drug and other substance abuse testing and training;
5. Relying more on properly enforced fines and the confiscation of the proceeds of crime.
6. Avoiding further legislation except when it is absolutely necessary so as provide the courts and NOMS with the opportunity they need to absorb the changes that have been made and deliver an effective criminal justice system.