To what extent should an offenders background be taken into consideration when sentencing?

[Bobbyewingshowerscene]

I have just listened to BBC Radio 4’s Moral Maze in which the above question is being interrogated by the panelists.
It’s a good listen (as are all the episodes, each considering a different subject) and I will try to post the link.

In my profession I see more than most, the impact of upbringing - or Lived Experience as we call it now- and understand the correlations between poor parenting, absent fathers, poor socio economic conditions, exclusion from school, material/ emotional needs not being met etc as well
as outright abuse and neglect etc.
For this reason we do already have pre- sentencing reports in some cases for judges to consider when sentencing.

However what worries me is if this argument is taken to its full conclusion and ‘Lived experience’ is seen as a mitigating factor in all cases how would this impact on he following :

Abuse of a child where the perp was abused themselves

Domestic violence against an intimate partner by someone who was systematically exposed to this in their own home growing up.

A rapist/ paedophile who was sexually abused as a child/ teen

A mugger of old ladies who has experienced extreme material deprivation all their life

A persistent stalker who has a learning need and attachment issues.

A house burglar/mugger who is funding a substance use issue due to self-
medicating childhood trauma

I mean apart from obvious way this would fail victims and the public at large in terms of reducing risk of sentences were shorter, what about free will and agency.

Would this not actually conversely suggest that people from a challenging background present more of an innate risk to the general public as are less in control than the general population?

So the public don’t need to be protected from fraud, theft , embezzlement, blackmail ?

As fas as I remember, one of the panel expressed the view raised in your last sentence, ie since a difficult background predisposes people to commit crime, we need to protect society from them.

A good point, and difficult to disagree with, but it might be better to try to 'fix' them as oart if their sentence.

But then in the UK the age of criminal culpability is one of the lowest worldwide at only 11. So actually we're harshest on our children and young people in our justice system.

I think it's also important to consider addiction as a type of mental illness though. The person who did that needs serious intervention work to address their addiction which is complex and actually best done in the community in most cases. Otherwise they go to prison, come out into the same situation and reoffend anyway. Plus the impact of a prison sentence on things like getting a job or stable accommodation - both of which are closely linked to maintaining sobriety which is ultimately what's needed to stop that person from driving under the influence. Plus there's the other risk where they come out, use again but their tolerance has dropped and they overdose. I've worked with a number of young people who have died because of this.

I think it depends on what you're looking for - you can't lock them up forever unless you're looking at a crime like serial murder so ultimately they need to be able to be in society safely so that should really be the goal rather than simply a lengthy prison stint.

"Abused as a child and then commit a similar offence? IMO makes no difference to the harm inflicted on a victim...Sentencing should focus on the harm inflicted or intended on victims. The background of the offender is far less important."

Obviously everyone is different and will process things differently but speaking from personal experience, understanding the background of the perpetrator of the crime committed against me actually helped me understand how they'd got to that point in their life and how that affected me. It made them feel less scary and humanised them which took some of the power away. It definitely helped me to process it. The other impact to be honest I don't think any harsher sentencing would have helped because the impact on me would still have been the same irregardless and I would still have been dealing with the same fallout irregardless. I'd much rather know that that person was addressing their issues and would be better in future. That's just my individual experience though.

All of the examples you give are very real - I can think of a person who would fit the descriptor in almost every case.

In terms of sentencing, the purpose of guidelines is to allow differing circumstances to be taken into account and broadly that seems right to me. There has to be justice for victims but the idea that a long prison sentence, rather than an appropriate sentence - which might include mental or health or substance use treatment, or restorative justice or reparation - is always ‘justice’ is a problem imo. Background is more than just childhood. Punishing someone who commits crime to feed addiction doesn’t solve the root cause. We don’t have enough leeway or imagination in sentencing, and the way it’s reported is designed to upset people. A community sentence, that might include aforementioned requirements as well as unpaid work or a fine or a behavioural course, are seen as ‘walking free’.

Having worked in youth offending, I agree.

20 years ago youth justice was mostly joy-riders and shoplifters with the occasional serious crime. Now it's mostly serious crime as the joy-riders and shoplifters are diverted away from the system and dealt with out of court.

I saw extreme offenders given chance after chance because of workers belief in 'trauma-informed practice' which absolutely has it's place but only if you're actually DOING SOMETHING to address the trauma. if you're just not expecting them to comply with their order or taking them out to Mcdonalds as a reward for even occasionally turning up because they've had a shit life, it doesn;t help a thing.

I've known children come into the system after numerous offences that were dealt with out of court saying they're quite happy to be on a youth offending order because their brother/sister/mate was and got taken out for food and nice activities all the time.

They wouldn;t turn up for the mandatory panels, reparation or whatever because they saw it as a waste of their time and if there was no reward like food or bowling, why would they?

I saw really dangerous children/adolescents not be breached on their orders because the worker didn;t want to effect their relationship with them and the youths relationship with the criminal justice system. Which put the public at risk. And often, the child was at risk from exploiters or gang violence that none of the authorities could or were, protecting them from.

As i said in a previous post, i think the tide is turning now and youth offending teams are being much more prescriptive and strict.

Sigh. You have no idea what a Marxist is, never mind what our playbook is. Plenty of people have awful or poor backgrounds and experiences and don't go on to offend. No actual Marxist would ever say that people should not take personal responsibility - quite the contrary. Without a doubt experience can inform the way that someone thinks and develops as a person, but it isn't just one aspect of their life forms character, and there is always the opportunity to make personal choices.

If you want to know what Marxists actually think, try looking up lumpen proletariat. People can be born into the lumpen proletariat, but staying there is still a choice, even if they haven't thought about making that choice. Individual agency always trumps circumstances - people can do and rise above their circumstances.

So what about their next victim, a child, a pregnant woman, someone with their whole life ahead of them, going about their business today and then to be mowed down by this person another day? Why are their lives less worthy?

I actually know the circumstances of the person who ploughed into me. He’s less drug addict and more pampered spoilt waste of oxygen.

Addiction is technically a mental illness in terms of DSM criteria but is also something that addressing it is in the hands of the person experiencing it.

They have to want to stop. And accept help. They're not suffering from a mental illness that takes away personal responsibility.

It's why you can;t be sectioned under the MHA for addiction.

Anyone who has ever worked with addiction has experienced numerous people who are given every opportunity to stop with all the help in place and they choose not to.

You could fight to get someone into community or inpatient rehab for months with them telling you that's what they need. they can't do it without that help and they fuck off hours before the start. Or go in but leave after a few hours or days because they 'don;t like the rules' or don't want to do this or that that they previously agreed to.

It's a complex issue but wouldn't come under the umbrella of 'mental illness' anymore that a DV victim choosing to stay in an abusive situation or repeatedly go back to one after receiving help to leave.

They're similar situations. It's often more about habits, environment, family structures, culture, friends etc that are more powerful than the substance.

It's complex but not mental illness by any definition.

Do you have a link?

I agree. There is currently a huge emphasis on trauma informed practice by professionals, at the expense of solution focussed or action/consequence work for example.
This is combined with parents insisting their children are SEN/ASD/ADHD/ODD
and so forth without formal diagnosis, and thus absolving them of personal responsibility while simultaneously excusing poor and ineffective parenting.

As a side note - The race issue was discussed in the podcast, in the context of young black men being disproportionately over represented in the prison population.
It is controversial to suggest that this is not in fact racism but a class / culture issue as it is specifically young black Caribbean males often from homes without a father, low parental supervision, suspicion of authority and low academic aspiration.

Their rather than Black West African counterparts for example, where the norm would be married parents, strict often religious boundaries and high levels of supervision, and extremely high academic expectation from parent to child.

Couldn’t agree more.
Been working towards this most my adult life in one way or another

I think this just shows how non-sensical the justice system is. I think sentencing should be based purely one one thing: how to keep society safe (with society including the defendant by the way).

Currently, we are trying to make a judgment on how much blame and punishment somebody deserves but this will always be a flawed and incomplete exercise because we arbitrarily assign personal responsibility and agency without understanding that all humans are pretty much bound by their genetic make up and the sum total of their environmental experiences to that point. Neither of which are under people's control. So e.g. should you get less blame because you had a rough childhood than someone whose brain has just not developed to be capable of empathy? And how do we decide what backbround exactky justifies the crime and what doesnt? There are so many factors involved in this that it's not possible to be fair or consistent. And should why should that mean a lower sentence when your risk of reoffending is the same? I'm not explaining this very well becsuse basically i am trying to say that free will is an illusion, which medicslly makes absolutely sense but doesn't really gel well with what people would like to believe or what is even in our best interest to believe.

Anyway, I think the justice system shouldn't make moral judgments but only focus on keeping society safe and sometimes this involves locking up people till they are safe again.

Don't get me wrong. I do think that we absolutely need to look into people's backgrounds but not to figure out how much blame they should carry but 1. To better predict their risk to society and 2. To improve society by learning what adverse experiences make us more likely to commit a crime.

Does anyone thought go into the victim/s in all this? Maybe if there was tougher sentences years ago there would be less criminals and victims now and then in the future if tougher sentences were there now?

The 'they had a bad childhood' excuse can only be used so often, and maybe if parents parented instead of blaming everyone else there may be less criminals? Look at the lives some of the kids have on here alone let alone in general

Tbh most people who end up in prison have some kind of mental illness and/or an abusive childhood. You don’t really know any of that when it hits the newspapers. Most crime is done by young men or teenagers, most of them will have abusive or neglectful upbringings, even if social services aren’t around. So really, it’s normal for a criminal to have these issues. It doesn’t change what harm they did.

Or the come out of rehab/complete home detox (which is more common now) completely sober and free of withdrawal symptoms. Looking and sounding incredible. And first stop is an office licence or their usual dealer.

I would prefer it to return to the way you describe.
I have direct links with the youth justice service in fact our roles cross over alot. I’m absolutely baffled at the resource the kids have access too- the gym, boxing, therapeutic in put, lifts everywhere, rewards for turning up etc,
Equally baffling is the fact that the subject of work /needing to work if out of school and the benefits of never mind the necessity of work hardly ever seemed to be discussed. It’s rarely an expectation of many of the young people and hard graft ( which for many you can just see would be a great thing ) as a normal part of life isn’t even on the radar.

Both mitigating nd aggravating factors are presented at sentencing. The judge weighs the relative merits of each, and sentence is delivered accordingly.
For those with the faily dail/reform attitude that there are no true mitigating factors, try being in the place of the guilty person. Mother with no money for baby food shoplifts. No mitigating factor m'lud. Woman who's put up with years of dv stabs the dh? Not a mitigating factor m'lud.
But generally, you are the types who park on a double yellow 'for 2 mins while I pick up kids', or break numerous 'little' laws that inconvenience you

or coercive control, online grooming , exploitation?
often those do not involve actual physical hands on violence ?

It shouldn't be taken into consideration in any way as it does not affect the impact of the crime on the victims at all.

My elderly uncle was brutally beaten to death by 3 men in a random home invasion in 2010. The rarest type of murder- no connection between victim and perpetrators.

The 3 murderers had all had the shittiest lives. From memory

• All 3 had IQs around 80/85.
• All 3 had FASD
• All 3 had had traumatic DV filled childhoods with absent fathers and strings of abusive men and alcoholic mothers.
• All 3 forced their way into the house of a gentle, eccentric, probably autistic 75 year old man and beat him to death with a claw hammer.They had robbed, beaten and terrorised an elderly couple the night before also.

I actually feel sorry for the murderers. What awful lives resulting in such a cold lack of humanity. I can’t imagine any of them ever feel joy or contentment. That said, I hope they die in jail. They won’t- 2029 is the date the first one can be considered for parole.

We are all equal under the law. Some perpetrators have had awful lives. I extend the unpopular theory that someone who has an awful life history would be much less likely to reform- lacking the intelligence, the decision-making abilities and the family support. So definitely no shorter sentences.

So they absolutely can increase a sentence based on prior behaviour (and do!) but not hugely outside the norms for the offence. So if the sentencing guidelines (which anyone can look up!) say the starting point is a fine and you can go up to a low level community order depending on the circumstance - it would be highly unusual to then send them to jail. You can’t re-punish them for something they have already been sentenced for.

🙄