Forensic Psychology

by Graham M Davies

  Penology is the study of legal punishment and of how it is administered. This occurs within that segment of criminal justice usually referred to as the penal system, a term loosely denoting the arrangement of courts, prisons, probation, youth justice and allied agencies within society. Since these arrangements have developed in stepwise fashion over very many years, to call the end-product a “system” may be, as Ashworth (2010, p. 71) has remarked, “merely a convenience and an aspiration” rather than an accurate description.

  Potentially, psychology has a significant contribution to make at numerous places within this “system”, and although the number of psychologists directly employed within it is still low relative to other professions, it has been steadily expanding in recent years. Since the process of sentencing should entail an understanding of why someone acted as he or she did, and that process is also intended to reduce the chances of similar actions recurring, psychology should perhaps be playing a far more influential role than has been the case so far. For arguably, if this does not sound too grandiose, the operation of law is in one sense a form of applied psychology.

  17.3 THE OBJECTIVES OF SENTENCING

  Within the criminal law and specifically within penology, sentencing has been conceptualised as serving a number of distinct but interconnected and overlapping purposes. The core of them is the idea of punishment, the signalling of society’s displeasure concerning what the offender has done, by the imposition of a penalty. But this apparently straightforward idea conceals a number of underlying complexities. The following outline borrows from several texts addressing this issue (Ashworth, 2010; Duff & Garland, 1994; Easton & Piper, 2012; Miethe & Lu, 2005). Although there is no definitive consensus on these matters, sentencing is currently thought to perform five main kinds of function: retribution and desert; incapacitation; deterrence; rehabilitation; and restoration and reparation.

  17.3.1 Retribution and Desert

  From one perspective, society responds to offenders by punishing them purely and simply because it has to. While there are various nuances within this, the reasoning that underpins the concept of retribution is as follows. There is a fundamental principle at stake when an individual acts against society by breaking its laws. The harm caused by such actions gives society an automatic right, indeed an obligation, to inflict pain on the offender in response. Conversely, so the argument continues, the offender also has a right to be punished. Retributive action corrects an imbalance created by the offences, by rectifying the wrong the offender has done; a concept that informs the familiar notion of “just deserts”.

  The origins of this idea can be traced back to ancient Judeo-Christian texts enunciating the “law of retaliation” or lex talionis, where punishment corresponds to the crime both in its severity and its type (“an eye for an eye”). Such a viewpoint underpins practices that are still applied in some countries where pain is inflicted on the law-breaker commensurate with that inflicted on the original victims. But the modern conceptual framework for this is usually attributed to the eighteenth-century German philosopher Immanuel Kant, who argued that in committing a crime, an offender gains an unfair advantage over those who have adhered to the law. Under the general political obligation that binds individuals to each other and to the state, there is a necessary reciprocity: punishment then restores a proper balance between the offender and the rest of society. He or she owes and must repay a debt to law-abiding members of the community (Murphy, 1994).

  A more recent reformulation of this is contained in the idea of censure, or expression and attribution of blame. Sentencing serves a reprobative function, and to be just it should be based on the principle of proportionality between the amount of harm done and the amount of punishment dispensed (von Hirsch, Bottoms, Burney, & Wikström, 1999).

  Overall the philosophy of retribution is not concerned with instrumental effects or outcomes. Punishment is viewed as “intrinsically appropriate” (Garland & Duff, 1994, p. 7) and the cycle of crime and official response is, as it were, a closed loop. But as we will see below the idea of retribution can also be combined with other elements whereby sentences can be designed to accomplish a number of goals simultaneously.

  17.3.2 Incapacitation

  In almost complete contrast, incapacitation refers to the possibility of crime control by removing offenders from circumstances where they are likely to commit crimes; by restricting their freedom to act. The most palpable means of doing this in contemporary societies is through imprisonment, or detention in other locked-up residential settings (ranging from children’s homes to high security hospitals). Thereby, offenders are “taken out of circulation”: they are removed from society and from situations in which they have opportunities to take vehicles, break into houses, sell drugs or get into fights (though unfortunately as we know, some of these activities continue in prison; Ministry of Justice, 2005). Apart from physical incarceration, liberty can also be restricted to varying degrees in community penalties. This is achieved, for example: by night curfews or electronically monitored home confinement; by exclusion from a neighbourhood where previous crimes were committed; or by a requirement to attend for supervision at specified times. There is wide civic endorsement of the principle that persons who have inflicted serious or repeated harm upon others (or in some instances upon themselves) should be restrained in some way, encapsulated in frequently heard phrases such as “public protection” and “community safety”.

  PHOTO 17.2 Even when police are not available to carry out arrests, there is no convincing evidence of upward surges in crime.

  Source: © arfo/Shutterstock

  But the idea of incapacitation has a similarly ancient history to that of retribution. In the distant past, individuals might have been exiled or banished from their communities. Not so long ago, a parallel of this was practised in the transportation of many thousands of offenders from the United Kingdom, initially to North America and later to Australia. In medieval Europe, the use of bodily restraints such as stocks and pillories, and that most durable symbol of penal confinement, the ball and chain, were designed to incapacitate as well as to punish in other ways. Whilst modern methods of doing this are less overtly physical, the net effect is similar in seeking to control the offender’s scope for antisocial action.

  17.3.3 Deterrence

  A third declared intention that drives the sentencing process is that it should alter criminal behaviour by attaching negative consequences to it. This is the paradigmatic example of what is entitled the utilitarian or consequentialist rationale for punishment as a response to crime (Walker, 1991). It is founded on the idea that legal sanctions will have an impact on individuals made subject to them. This set of expectations is sometimes referred to as deterrence theory (or occasionally deterrence doctrine) and it is probably the most widely taken-for-granted purpose of sentencing.

  Deterrent effects can be subdivided with respect to different scales of intended outcomes. One basic, conventional distinction is that between specific and general deterrence. The former refers to the impact of punishment on the individual made subject to it: theoretically, when someone is punished for committing a crime, he or she should be less likely to do it again. The latter refers to the wider effect this is expected to have on others, and on the community as a whole. If committing crimes is known to be punished, the public at large should be less likely to do it, as they have observed that it will result in unpleasantness for them. These are useful conceptual distinctions, but in everyday reality there is likely to be a complex interplay between specific and general deterrent effects (Stafford & Warr, 1993).

  Penologists have recognised that the objective features of sentencing are probably less important to prospective offenders than its subjective or perceptual features (Gibbs, 1986). Objective properties are those that might be recorded by the police or by a government statistician, showing for example rates of detection, arrest, or subsequent imprisonment for different types of crime. Subjective or perceptual propertie
s are those that are meaningful to an individual offender, who may be wholly uninformed concerning criminal statistics but is probably conscious of peers who have escaped arrest or who have been arrested, for specific misdemeanours. The real operative factors in everyday decision-making by anyone considering an offence are likely to be immediate personal knowledge rather than official databases.

  There are several features of sentences that may be considered from either objective or subjective standpoints: certainty, celerity and severity. Certainty refers to the likelihood of legal punishment as a result of committing a crime; celerity, to the amount of time that lapses between an offence being committed and an official sanction being imposed; severity, to the magnitude of a punishment or the estimated amount of pain or discomfort a convicted offender would endure. Defined objectively, certainty refers to the proportion of crimes of a specific type that result in formal punishment; subjectively, however, it reflects individual offenders’ estimates of the chances of being caught. To draw an everyday parallel, just as most people preparing to drive off in their cars think an accident is unlikely to happen to them (though they may be distantly aware of statistics concerning such a risk), so most individuals contemplating a crime tend to discount measured probabilities and focus on the details of their own actions and circumstances. Penologists have discovered that it is changes in the perceived features of sanctions that are more likely to influence the behaviour of individuals inclined to break the law (von Hirsch, Bottoms, Burney, & Wikström, 1999).

  17.3.4 Rehabilitation

  Retribution, incapacitation and deterrence are often in themselves believed to promote a further effect, that of rehabilitating the offender. The individual’s recognition of how society perceives his or her actions, conjoined with the unpleasantness of losing liberty or enduring other effects of punishment, will encourage him or her to become reformed and to desist from criminal acts. Thus some penologists consider that rehabilitation is integrally achieved through retributive and deterrent effects.

  Others, however, take the view that the sentence of the court should incorporate procedures explicitly designed to support rehabilitation. The latter might include, for example, remedial education, employment training, various types of psychotherapy where indicated, developing awareness of victims, or participation in specially designed programmes for the reduction of offending behaviour. Each of these will (potentially) reduce both the alienation that many offenders already experience and the additional stigmatisation induced by the sentencing process, while also enhancing the individual’s prospects of becoming a more fully fledged citizen and a law-abiding member of the community.

  It is with reference to this that psychology has perhaps had its farthest-reaching influence on practices in the criminal justice system in recent years. The model that informs such work begins with the observation that some kinds of individual differences are reliably associated with risks of repeated involvement in crime. These risk factors derive not from variations in personality traits, as was hypothesised at an earlier stage, but in a range of other variables. They include patterns of criminal associates, antisocial attitudes, a tendency towards impulsiveness, poor emotional self-regulation, and deficits in a number of social, cognitive and problem-solving skills (Bonta & Andrews, 2017; McGuire, 2004). Identification of these risk factors led to the proposal that if they could be successfully remedied by psychosocial interventions, individuals might be less likely to commit further offences as a result. There is now substantial evidence to support such proposals and some of the key findings in this area will be described later in this chapter.

  17.3.5 Restoration and Reparation

  A fifth and relatively novel perspective on punishment has emerged over approximately the last 30 years, influenced in part by a steadily growing recognition of the rights and needs of crime victims. One application of this in some countries has been the provision to victims of opportunities to make “impact statements” in court that might influence the deliberations of sentencers (called victim personal statements in England and Wales; see Ashworth, 2010).

  But the more innovative development has been influenced by approaches to crime taken in some non-Western societies. This has introduced the concept of restorative justice, of attempted reconciliation between offenders and victims, with the former making direct reparations to the latter where possible, as traditionally occurred amongst some indigenous communities in various parts of the world. The fundamental principle here is the repair of the damage done to the victim and community by the commission of the offence. But it takes a direction quite different from the punitive sanctions customary in a retributive approach. It may entail a variety of elements, including the acknowledgement by the offender or his or her responsibility for the offence, the offering of an apology, or making of direct restitution in some manner settled jointly between victims, offenders and other interested parties.

  In several jurisdictions an extensive application of restorative models has occurred in which special arrangements have been made to include all relevant parties – the victim, the offender, their families and community representatives – in collective decision-making to agree a response to the offender’s actions. From early initiatives in New Zealand and Australia these procedures have been piloted in many other countries, although to date they have remained on the margins of other longer-established sentencing procedures. Evaluation of such projects has typically shown that they produce higher levels of satisfaction for victims than the more impersonal proceedings of formal court hearings.

  The various philosophies of punishment just outlined can be combined, so that a single sentence might represent an attempt to achieve several objectives at once. In some circumstances judges may enunciate this, indicating how they arrived at a given sentence by designating portions of it intended to serve different penal purposes (Ashworth, 2010). The prevailing sentencing framework for England and Wales, the Criminal Justice Act of 2003, specifies the purposes of sentencing in a way that makes explicit the possibility of integrating different judicial purposes in a single sentencing decision (Taylor, Wasik, & Leng, 2004). Details of the type and severity of sentences that can be applied to different offences are set out in a series of documents produced by the Sentencing Council (which succeed the former Sentencing Guidelines Council in 2010). Under the Coroners’ and Justice Act 2009, courts in England and Wales are required to follow relevant guidelines when passing sentence. The Sentencing Council publishes a range of such guidelines and also provides advice on clarifying the objectives of sentences (available on the Council’s website). For magistrates’ courts, the final stage of sentencing, the decision itself, should be accompanied by a statement of the reasons why the bench has arrived at the sentence to be imposed (Sentencing Council, 2008).

  The legal framework of courts, their sentencing powers, the sentencing options available to them, and many other features of criminal justice vary considerably between different countries and are subject to change over time. It is advisable for any psychologist working in the penal system to become familiar with the principal features of the context in which he or she is working. Numerous textbooks, websites and other information sources exist to facilitate this in virtually every country and there are also integrative volumes summarising key attributes of criminal justice taking a comparative, international approach (e.g. Newman, Bouloukos, & Cohen, 2001; Pakes, 2014).

  17.4 THE IMPACT OF SENTENCING

  Is it possible to answer the question posed in the title of this chapter and draw any firm conclusions about the usefulness of sentencing, about whether it “works”? As suggested earlier, to the extent that sentencing might have a solely retributive or “non-consequentialist” purpose, its application does not involve an appeal to direct empirical testing, since there is no primary concern with outcome effects. If its purpose is meant to be expressive and symbolic, then as Garland (1990) has argued, those who seek to evaluate its effectiveness have somehow missed the point.
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  Other declared objectives of sentencing are potentially testable in principle, but there are variations in the extent to which doing so would be feasible in practice. To evaluate general deterrence, for example, societies are scarcely likely to embark on large-scale experiments in which they temporarily suspend their laws for hypothesis-testing purposes. This reluctance may lead us to conclude that it is the existence of criminal sanctions that holds society together; that it is only the general deterrent effect of the portfolio of state punishments that restrains citizens from more or less constantly violating each other’s interests.

  However, a partial test of general deterrence might be adduced from other sources. One is observation of what occurs when there is a breakdown of “law and order” in society, for example during episodes of civil unrest. History is replete with relevant examples, and indeed rates of many crimes often do rise sharply during such episodes. When social order disintegrates, however, so many changes are happening in parallel that it is problematic to attribute the resultant “lawlessness” to any one of them. In less extreme situations, it can be difficult to discern the role of criminal justice agencies as a component of the observed changes and their impact appears to be marginal. For example, following the downfall of communism in the then Soviet Union in the early 1990s and the social liberalisation that ensued, there was a 50% rise in crime rates in a period of just two years (Gilinskiy, 2006).2 But this was almost certainly a function of many influences, involving simultaneous economic, political and social change. The network of police and courts continued to operate in the same manner through this period, but had no observable restraining effect on a trend that was driven by other factors.