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Offender Psychology and Sentencing

Published in the Australian Psychologist volume 31, 1, 15-19 1996

David Indermaur
Crime Research Centre University of Western Australia

This paper critically examines the inadequacies of sentencing practice in relation to a number of aspects of offender psychology. It is argued that sentencers are inadequately informed in regard to the two major goals of sentencing: deterrence and rehabilitation. Without conducing thorough evaluations of the effectiveness of sentencing, including an analysis of the experience of offenders it is likely that sentencing in the dark will continue. The literature on the perspectives and beliefs of offenders suggests that although offenders may plead guilty in the hope of achieving a lower sentence, in many cases there is likely to be a lack of genuine remorse and therefore the sentencing process will not effectively engage with the offender. Similarly the literature on deterrence suggests that offenders underestimate their chances of getting caught and this is likely to diminish any intended general deterrent effect that is sought. It is argued that the current arrangement suits both sentencers and offenders as bureaucratic efficiency is served and sentences are discounted. It is suggested that psychology has much to offer the criminal justice system by critically evaluating the likely impact of various sentencing strategies and pointing out conflicts in sentencing practice. The first step, it is argued, should be an attempt to disentangle the confusion of sentencing and treatment that often places both offenders and treatment staff in conflict and compromises the integrity of treatment programmes.

Given that the sentencing of offenders represents the official attempt by the state to change antisocial behaviour of individuals it is surprising that psychology has so little to do with it. It may be that psychologists have not been assertive enough in pointing to the folly involved in most sentencing practice and suggesting better solutions. It may be that whatever suggestions psychologists had would be ignored by the courts, wedded as they are to the legal profession that sees itself the main repository of wisdom on all matters to do with crime, including changing offender behaviour. Whatever the reason for the dire lack of psychological groundwork in

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sentencing practice, things must change and this paper will point to a few areas where the lack of psychological understanding limits the potential power of sentencing. Sentencing is a form of communication. The sentence itself is often presented as an action that will make it less likely that the offender or others will commit offences in the future. This common view of sentencing is described by Ashworth (1992) as consequentialist as it is concerned with the effect the sentence has on future behaviour. A consequentialist view of sentencing is thus concerned, like psychology, with behaviour change. Unfortunately, twenty years after Martinsons (1973) famous statement that nothing works, there remains little evidence that any particular form of sentencing, justification of sentencing or judicial pronouncement can be isolated as more effective than any other in changing behaviour. Most modern research on recidivism (e.g. Broadhurst and Maller, 1991) finds that the chances of the offender returning to prison vary according to factors unrelated to the sentence such as sex and race. The Australian Law Reform Commission report on sentencing (1988, p.24) also noted that in relation to the traditional goals of punishment, incapacitation, rehabilitation and deterrence: The accumulated evidence of nearly two centuries... shows that prison fails to achieve any of these objectives, on a widespread or consistent basis. In practice, the function of prison today is largely punishment Later in the same report (P26) it was stated: It is generally agreed that rehabilitation programmes employed to date have been unsuccessful if the incidence of recidivism is taken as the indicator of success. Despite the lack of evidence to support a belief in the effectiveness of sentencing in changing behaviour, reference is commonly made to rehabilitation and deterrence by sentencers when passing sentence. Recent sentencing legislation (see s.5 of the 1991 Victorian Sentencing Act) also continues to underline the importance of sentencing for deterrent and rehabilitative effects. It appears that much sentencing theory and practice is flawed as it depends on a belief that sentencing is effective in changing behaviour. However, a belief may be held not because it is true, but because it is convenient. This convenience is most readily observed in the sentencing of sex offenders. Sex offender treatment programmes are routinely mentioned in the sentencing of sex offenders despite the lack of any substantial evidence that these programmes perform any better than chance at reducing the likelihood of reoffending (Quinsey, Harris, Rice and Lalumiere, 1993). The existence of a treatment programme can allow the sentencer to avoid passing a lengthy period of incarceration. An example of this can be found in a report of a sentence in Western Australia (Tan-Van Baren, 1993). The sentencing judge is reported as saying he did not want to sentence the offender beyond a total term of 10 years because he hoped he could be rehabilitated.

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The judge is also reported to have argued that the offender did not fully appreciate the depravity of his behaviour and this could be linked to a childhood in which he was sexually molested Such speculation by sentencers regarding the psychology of the offender is open to a number of potential errors and relies on a number of tenuous assumptions (see Fitzmaurice and Pease, 1986 for examples of these). It is likely that the sentencers assumptions and beliefs concerning offender psychology are linked to the view the sentencer has of offenders and the purpose of the sentence. The consequentialist aims of sentencing, such as deterrence and rehabilitation, rest on assumptions about how offenders, either individually or as a group, perceive and experience sentences. Offenders perceptions of sentencing should, therefore, be of vital interest to a consequentialist sentencer. This paper seeks to challenge some of the assumptions about offenders perceptions made by sentencers. It will be argued that although these assumptions may be convenient for sentencers they often misrepresent the reality experienced by offenders and serve to erode the development of meaningful and effective treatment programmes. Further, for sentencing to be effective as a communication it needs to be disentangled from consequentialist assumptions and expectations and be applied to communicate the gravity of the offending behaviour. 2. Perspectives on sentencing. Sentencing does not occur in a vacuum. There are a number of actors and audiences and each has a unique perspective or construction of sentencing. The constructivist perspective (Gergen, 1985; Mahoney, 1988) argues that each participant in the sentencing process will enter the arena with a set of preconceived needs, attitudes and expectations and will interpret the meaning of the action (sentencing) in accordance with these conditions. A true understanding of the sentencing process needs to account for the different, and often competing, perceptions and experiences of the participants. Understanding offenders perceptions requires the acknowledgment of social realities which may be alien to the law abiding and the privileged. Sentencers can not assume they are a ble to automatically appreciate offenders experience or perceptions. The need for sentencing judges to appreciate realities which may be outside of their experience emerged as a dominant issue in Australia in 1993 in relation to male judges sentencing in rape cases. It has been charged that such judges fail to empathise sufficiently with the victim and understand her experience. Although this is a poignant example of the limits in the ability of one person to appreciate the position of another, it is but one instance of the challenges posed to the sentencer in understanding the human dimension of sentencing. Black (1983) points out that much behaviour that is classified as crime originates as a grievance by the offender against the victim. The grievance may be specific to the individuals concerned or part of a general group grievance (e.g. Aboriginals against whites). Black suggests that much offending behaviour will, therefore, be seen by the offender as legitimate and the offender may

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even enter the sentencing process feeling proud of his/her behaviour. The sentence may serve to reinforce a belief in the offender that they are a martyr. Alternately, and probably more commonly, where offenders feel that the offence was justified they may feel aggrieved by the application of a sentence and may construe this as further selective violence against them for being poor or black. The information flow regarding the perceptions and experience of participants in the sentencing process has increased recently with the incorporation of victim impact statements and victim offender mediation programmes in many jurisdictions. Public feelings are also routinely explored in public debates over sentencing. However, the assumptions, expectations and experiences of the two central actors, the sentencer and the offender, are rarely directly measured or communicated. 3. Offenders attitudes and perspectives on sentencing and offending.

Gaining insight into offenders perceptions and experiences relies both on what offenders do and what offenders can tell us directly about their thoughts, feelings and actions. Despite its importance to the meaning and effectiveness of sentencing there has been relatively little work completed on offenders accounts of their own experience. Agnew (1990) argues that there remains concern about the inability of offenders to honestly articulate their own perspective. However the validity of this concern is being increasingly questioned and, as Agnew points out, there has been a minor resurgence in studies using offender accounts. This resurgence is precipitated by the emergence of theories which are interested in how offenders think, react, and make decisions (i.e. rational choice approaches, see Cornish and Clarke, 1986; Felson, 1993). The development of such theories which focus on the offender as a decision maker indicates a move away from the social and psychological determinism which portrayed the offender as a black box, influenced unwittingly by social and psychological forces. The determinist view also provided the theoretical ground for rehabilitation as a major purpose of sentencing. It should be noted that the resurgence in offenders accounts has been largely limited to their own offending behaviour. As Fowler, Bray and Hollin (1992, p. 33) noted ... research looking at offenders beliefs about methods of disposition has been neglected. Shapland (1987, p. 82) examining the influences on the sentencing decision speculates that the beliefs and expectations of the defendant may play a significant role but she comments: Unfortunately, no one has studied defendants wishes about sentencing and so there is little research evidence on this. Notwithstanding the dearth of literature directly on offenders perceptions of sentencing, a literature has developed over the years on offenders constructions of their own criminality. Some of this work also reflects on how offenders perceive punishment and related issues such as guilt and responsibility. Much early criminological work, especially that of Sutherland, Cressey and Sykes and Matza focussed on how offenders make sense of their offences and how their view of the world allows, excuses and, in some cases, demands offending behaviour.

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In relation to sentencing, the most relevant concept to come out of this early work is that of neutralisation (the defusing by the offender of guilt associated with the offence). The idea of offenders justifying their behaviour was originally introduced in Cresseys (1953) work on embezzlement. T he notion was then refined and applied by Sykes and Matza (1957) to juvenile delinquency. Black (1983) argues that the term neutralisation may misrepresent reality for at least some offenders who feel a real grievance against their victims. Many offenders, Black argues, initiate the offence as a result of their own perceived victimisation by an offender. Due to the uneven availability of access to legal resources, including police intervention, the poor and marginalised are most likely to resort to this kind of self-help according to Black. Offenders use of cognitive techniques which disengage them from responsibility for the crime have been discussed in studies of how violent men construe the violent situation. This micro-analysis of the violent situation is very instructive in understanding not only how the violence occurs but also why offenders dont necessarily feel guilty about it. For example, Katz (1988) describes how many domestic killings are viewed by the perpetrator as righteous and a last stand to protect their honour. The notion of perceived provocation also emerges in the work of Athens (1974, 1980, 1989) and Toch (1984) which describes how for many violent offenders violence becomes necessary to maintain an acceptable presentation of the self. Bandura (1983) has produced a list of disengagement techniques which are similar to the neutralisation techniques described by Sykes and Matza (1957). Disengagement techniques such as the dehumanisation of the victim are cognitive devices which prepare and allow the actor to be violent by suspending normal sensitivities. Scully and Marolla (1984; 1985), Scully (1990) and Groth (1979) have focused on how rapists construct the rape scene in such a way that justifies or allows the rape. In relation to sentencing, a number of studies (e.g., Grasmick and Bryjak, 1980; Paternoster, Saltzman, Chiricos, and Waldo, 1982) have studied the deterrent effect of legal sanctions by examining offenders perceptions. As Apospori, Alpert and Paternoster (1992, p379) describe: Within the last 20 years, research on the deterrent effect of legal sanctions has moved from aggregate to individual-level data. This methodological shift was caused by the recognition that persons are deterred, if at all, not by the objective properties of punishment but by their perceptions of the certainty and severity of legal sanctions. The study of offenders perceptions is obviously closely related to the deterrent aims of sentencing and the studies cited above, amongst others (e.g. Harding, 1990) have attempted to ascertain how offenders process the possibility of punishment in their decision making about crime. This study of if, and how, deterrence works is essential to the veracity of the classical view of sentencing as

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deterrence, originally promoted by Bentham and Beccaria and accepted uncritically by consequentialist sentencers. One effect isolated by the perceptual deterrence studies (e.g. Apospori et al., 1992) is that personal experience in rule breaking lowers ones perception of the risks of such behaviour. This experiential effect opposes the classically hoped for deterrent effect as explained by Apospori et al. (p. 390) in discussing the results of their study: Deterrence generally is understood to be based on a system of information transmission: potential offenders are warned that if they commit an illegal act, they most certainly will be punished. The opposite message appears to be conveyed here, however. The threat of punishment was not communicated effectively t o those who experienced legal sanctions. The experience of arrest and conviction facilitates the lowering of perceived risk of legal sanctions produced by committing criminal acts. The deterrent aims of sentencing will also be irrelevant to the large range of crimes where offenders feel not only justified but compelled to act to protect or promote their honour or their rights. At a practical level convicted offenders through their counsel will work with the psychology and assumptions of the sentencers to facilitate a beneficial construction of the offence. This process involves the engagement of an interest in distancing the offender from the offence. This familiar process of mitigation is generally achieved by diminishing the responsibility of the offender. Shapland (1981) has described in detail how the disengagement from responsibility can be used by offenders in direct attempts to evade a heavy sentence. In her instructive taxonomy of mitigation Shapland discerned two dimensions along which mitigation of responsibility is generally achieved. These are denial of responsibility and denial of wrongdoing. Convicted offenders are under some pressure to convince the sentencing judge that they acknowledge wrongdoing and most pleas of mitigation, according to Shapland, begin with a statement to this effect. Mitigation is then largely attempted by denial of responsibility through provocation, influence of peers, the effects of drugs or alcohol or whatever else is possible in the particular case. However, the s kill of the defence counsel in deflecting responsibility from the offender may unwittingly support and feed a nascent belief in the offender that they are indeed not responsible for their crimes. This belief may be further reinforced if the judge indicates in sentencing that the responsibility of the offender is diminished. The issue of responsibility and guilt are central not only to the legal procedure but also to the psychological drama that crime and its punishment reflect. In criminal procedure guilt is the linchpin. The system is placed under much less strain where offenders plead guilty. To achieve this most jurisdictions in Australia have provided inducements for offenders to plead guilty. The main inducement is a reduction in the sentence. This discount for pleading guilty is well known although officially denied for many years. A number of reports on sentencing have recommended the

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discount be supported and made explicit. This recommendation has been incorporated in the pioneering sentencing legislation, the 1991 Victorian Sentencing Act (s.5(2) (e)). The system can be tuned to produce guilt also by providing lesser sanctions and tribunals for those that plead guilty. This production of guilt has been described by Naffine, Wundersitz and Gale (1990) in their analysis of the South Australian juvenile justice system. It may not be surprising, given the interest the system has in the offender being guilty, that there is little effort expended to discover if offenders feel guilty or indeed believe they are guilty. It may be that the lack of interest reflects the fear that the convenient fiction that offenders feel guilty will be challenged. In my experience with convicted offenders a proportion will claim they pleaded guilty not because they were guilty but because they believed they would have been found guilty and wished to avoid the harsher penalty that is attached to a plea of not guilty. Krohn and Stratton (1980) found that most (83%) of the 153 maximum and medium security prisoners they interviewed in the United States admitted they were guilty of the offence they were convicted of. However only 22% of these inmates felt their actions had caused any harm and only 42% felt that the sentence they received was fair. A similar result was found in a recent Western Australian study of offenders (Indermaur, 1994) As previously mentioned, defence counsel know well that pleas for mitigation need to begin with acknowledgment of wrongdoing and the expression of deep remorse. The fact that most of the actors realise that much of the time no remorse is felt (apart from getting caught) does not detract from its importance in allowing the sentencing procedure to continue as if it were true. It is interesting that sentencing and treatment both depend on the offenders guilt, however for the purposes of sentencing this guilt needs only to be claimed, for treatment to be effective the guilt needs to be felt. Such felt guilt provides the motivation for personal change. As I have previously (Indermaur, 1994) argued it appears that offenders are more likely to choose rehabilitation as the most important purpose of sentencing than the public or the judges. Further evidence of offenders positive attitudes to the notion of rehabilitation is found in their high degree of acceptance of compulsory treatment programmes. The large proportion of offenders that do not think their sentence is fair and do not feel guilty supports the concerns raised earlier in this paper. It is possible that many offenders do not feel guilty because they see their own offences as minor, or at least justifiable, when held against their own deprivations. This also agrees with Blacks theory of crime as self-help. The impression I have gained in talking to offenders is that this is a very useful way to understand much criminal behaviour. However, it is one that is consistently denied by the criminal justice system. A tendency of offenders to see themselves as victims and to look to the courts for help or justice may explain their experience of disappointment with the system. The view that sentencing is reformative is often articulated by sentencers which may encourage offenders in their belief that sentencing is about rehabilitation. However, the sentencers attempt to pathologise the offender and represent the sentencing act as a remedy to that pathology denies the social meaning of both

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the crime and the sentence. The alternative position is to condemn the behaviour and support the person. The sentencing decision may then be a clear condemnation of the offence but not the offender. To conclude, sentencing and rehabilitation need to be disentangled to allow for more effective communication. This communication requires a greater awareness of what is meant by the sentencer and what is understood by the offender. More open and critical debate is needed on the purpose and effectiveness of sentencing. It is hoped that this debate would result in a greater degree of awareness being achieved of the differing perspectives on sentencing and the limits of sentencing. It is also hoped that the disentanglement of sentencing and rehabilitation will lead to the development of genuine and effective treatment programmes for offenders that do wish to deal with their behavioural problems. This disentanglement was recommended by the Canadian Sentencing Commission in 1987 (see also Doob and Brodeur, 1989) and has the potential to serve the dual interests of justice and rehabilitation by treating offenders as responsible citizens with rights and obligations. The demands of responsible citizenry can be achieved through appropriate proportional sentencing. Once sentenced genuine and high quality treatment programmes can be provided for offenders as a matter of their informed choice. A system, like an individual, that can embrace the concepts of responsibility and choice has the most potential for development.


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