Question 3

What is the impact of the role of probation staff in advising sentencing and in promoting community sanctions and measures?

by George Mair
Liverpool Hope University (UK)

Sentencing is a complex and nuanced process. The decision about which sentence to impose on an offender is taken by judges who have relatively little independent and impartial information about or knowledge of the offender, his/her circumstances, or the wider context in which the crime was committed. Particularly in adversarial systems, defence solicitors put as positive a spin as possible on their clients in an effort to win a lenient sentence, while prosecutors, on the other hand, tend to aim for a severe sentence and sketch the offender accordingly.

In this arena of heavily biased and conflicting claims, probation staff can provide a more ‘objective’ appraisal of the offender and sum up the advantages and disadvantages of possible sentences. Even though the scope of court reports prepared by the probation service has been narrowed and the time permitted to carry out a report has been cut in some jurisdictions (for example, there has been a massive growth in on-the-day oral reports in England and Wales in the past decade), probation staff can offer a reasonably independent opinion of how an offender is likely to react to a sentence. And as we know that a sentence is more likely to be completed and reoffending is less likely if the offender reacts positively to the punishment (if the offender perceives the sentence as legitimate), then the advice of probation staff would seem to be an invaluable component of the sentencing process.

Many studies have shown that the concordance rate between probation proposals and court sentences is high, and while there may be other reasons for this (e.g. probation second-guessing judges’ decisions), it does suggest that the impact of probation staff in providing information and advice to judges to aid their decision-making is considerable.

Probation staff are not, however, wholly disinterested participants in all of this. The provision of advice to judges plays a key part in promoting community sanctions. In the first place, the range and mix of such measures can be complicated and judges need to be kept alive to the availability and potential of community sentences as effective court measures.

Second, by promoting community sanctions probation staff may successfully discourage more punitive sentences thereby diverting offenders from a custodial sentence. This would lead to reductions in the prison population, and the use of more humane and more effective sentences as all the evidence suggests that community sentences are at least as successful as custody in terms of reconviction rates and are considerably less expensive.

Third, without probation staff actively promoting community sanctions, who would consistently make the case to judges for a less punitive and more considered approach to sentencing? And this may play a small but significant role in slowing the growth of a punitive culture – even if it may be too much to hope that it might reverse it.

Probation staff do not have a natural shop-front in which to display their wares; only the court offers an appropriate place to market their services to their most important consumers – judges. While the main task of probation staff is to supervise offenders in the community, their most influential role may well be that of providing advice to aid sentencing and thereby promoting the use of community sanctions.

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