Sentencing guidelines: The problem of conditional sentences

Abstract

In recent years there has been considerable interest rationale underlying custodial, community and financial sentencing, and a resurgence importance of desert principles.(1) Standard forms of sentence involve imposition by sentencing court of an immediate sanction upon offender. Yet many sentencing systems, sanctions may imposed by court conditionally, rather than immediately. Commonly encountered though they are, conditional sentences are a form of sentencing option rarely considered sentencing literature. The purpose of this article is to examine conditional sentences and to assess to what extent they are compatible with modern sentencing systems which take desert principles seriously. This topic is a large one, and discussion is exploratory. The development of conditional sentences has its roots European jurisdictions late nineteenth century.(2) During period through which conditional sentences have since been used by courts, dominant penological approach has been crime-preventive and utilitarian. It is clear that introduction of conditional sentences was driven by utilitarian concerns. Sir Leon Radzinowicz, writing 1970, described emergence of conditional sentences Europe as a humane intervention, representing a break with iron equation of crime and punishment classical codes of mid-nineteenth century.(3) Allowing sentencing judge option of imposing a sanction conditionally, rather than immediately, bestowed greater flexibility to individualize sentences--to take account of perceived needs of offender as well as seriousness of offense. Crime prevention has also been standard against which effectiveness of conditional sentences has been judged. Later same essay Radzinowicz asserts that the only justification there could be for use by courts of suspended prison sentence England is that it would more effectively prevent future delinquency.(4) Since 1970s, however, many sentencing systems have been adopting sentencing schemes which are now based upon, or pay considerable regard to, principles of desert.(5) It is timely, therefore, to consider whether, or to what extent, conditional sentences may accommodated within desert principles. The Parameters of Conditional Sentences A wide variety of different orders might included within category of conditional sentences. A working definition of term is required for our purposes and, absence of a more generally available summary, following is proposed. A conditional sentence is: 1 a sentence passed by a criminal court, 2 which imposes no immediate deprivation upon offender, 3 but which places offender under a condition not to reoffend, 4 for a stated period of time. 5 A sanction, to imposed event of offender's failure to comply with this condition, may announced by court at time of original sentence and, 6 event of failure by offender to comply with condition, offender will sentenced by court at a further hearing for original offense as well as for new offense. To put it briefly, conditional sentences are inchoate sanctions, held over offender by court and brought into effect only event of commission of a further It is helpful to distinguish conditional sentences (as outlined here) from (A) community sentences and (B) deferred sentences. (A) Community sentences (like conditional sentences) are served in community. Community sentences, however, also contain such as obligation of regular meetings with a probation officer, or more onerous requirements, such as community service. As with a conditional sentence, an offender's failure to comply with terms of a community sentence (such as where he ignores probation conditions or fails to show up for community service) may well result offender being returned to court. …

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