Aims and Functioning of the Law in Rehabilitation of Offenders - Case Study Example

Running head: Aims and Functioning of the Law in Rehabilitation of Offenders Your name Course name Professors’ name Date Introduction This presentation is about the aims and function of the employment law in rehabilitation of offenders. The paper will begin by analysing aims of the law in rehabilitating offenders. It will be palpable from this section that aims of the law in rehabilitation are in official terms of reference of people handling offenders. Case laws will be consulted to understand vividly how the law operates within the realms of rehabilitation of offenders. This will be followed by an examination of prospect of rehabilitation by assessing various factors considered by the courts in determining whether an offender is able to rehabilitate. Thereafter, the paper will proceed to address criticism placed on rehabilitation by various scholars. Before outlining recommendations, legislations targeting rehabilitation of offenders and ways of removing barriers to employment of ex-offenders will be dealt with explicitly. Aims of the law in rehabilitation Rehabilitation, retribution, incapacitation, and deterrence comprise of the main aims of correctional system. Rehabilitation of offenders is intended to curb recidivism by paying attention to factors that propelled and offender into crime. Specifically, rehabilitation seeks to address elements that are associated with recidivism. In a rehabilitation process, an offender is given different kinds of assistance intended to improve social skills, employment prospects, and the ability to obtain welfare benefits. The ideals of rehabilitation are evident in official terms of reference of people dealing with offenders. One of the terms states that Prison Service are supposed to treat inmates with humanity while helping them to live as law abiding citizens immediately after their release. The other term requires probation officers to advice, assist, and befriend offenders who in the case are their clients. In appeal decisions of R v Bugeja [2001] NSWCCA 196 (11 May 2001), Adams J stated categorically that the purpose of the rehabilitation is such that the offender will not reoffend. This case law is limited since it does not address historical characteristic of the offender. The aim of rehabilitation is also evident in Vartzokas v Zanker (1989) 51 SASR 277, 279 where King CJ reiterated that as an object of sentencing, rehabilitation targets at offender’s renunciation of the offences and subsequent intention to live as a law-abiding citizen. This pronouncement lacks substance where an offender just renounces but practically goes ahead to re-offend. The sentencing ought to be backed up objectivity or practical part where an offender is allowed to practice what is in the mind. Prospect to rehabilitate In determining offender’s prospect to rehabilitate, courts examine a number of variables. Even though Section 16A of the Crimes Act of 1914 provides that character is an independent sentencing factor, the variable can be considered when determining the possibility of rehabilitation. Good or bad character such as offender’s prior public service and position in religious community is influential to decision on rehabilitation. Besides, community where an offender has been growing up ought to be considered. Nature of some suburbs i.e. prone to crime increases the chances of offending and reoffending thus critical in any judgement decision. The case of R v Cohen [1998] VSC 309 where Jewish man was convicted of heroin shows how religious standing and military service is pertinent in determining the possibility of rehabilitation. The reason behind this is that a person is a holistic individual made of religious and spiritual parts. The second factor considered in determining prospects of rehabilitation is criminal record. Depending on the nature of the case, offender’s possibility of rehabilitation is determined by the previous criminal records. Nonetheless, Crimes Act of 1914 classifies this factor as independent sentencing factor. A landmark case of R v Holzberger [2007] QCA 258 reveals how the concept of repeat offenders influences the capacity to rehabilitate. In this case law, the offender appealed because his efforts to rehabilitate had not been considered. The court’s decision was that the offender had extensive criminal record. This decision is substandard given that ability of an offender is not absolutely determined by past criminal records. In several occasions, offenders have completely changed their bad ways and this must be considered in judges decisions. Besides, Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404, [79] focused on first time offenders. It is apparent from the case that successful rehabilitation protects the community where first time offenders is not turned towards a criminal lifestyle. If a sentence aids in deterring future offending, the community is as such protected. Other critical factors considered by the court is the conduct between offending and sentence, dedication to rehabilitate, treatment, relationship, education, and youth. Criticism of Rehabilitation During the 20th century, rehabilitation had the greatest impact on correctional thinking and practise. The year 1970s saw the idea of rehabilitation criticised as a legitimate correctional aim. The basis of this criticism revolved around ethical concerns. Debates were raised on whether the state had the right to demand rehabilitation or they were just practises in social engineering (Raynor, 2009). Sentencing practises were also criticised because individualised sentencing on like crimes had disparities depending on individual circumstances and needs. In the case of indeterminate sentences, where release date is determined based on prisoners progress while in prison, it was viewed as violating the principle that an offender is punished for what he or she has done and not for failing to rehabilitate (Bonta, 2007). The second doubt casted on rehabilitation was on theoretical and practical thought. Martinson (1974) asserts that rehabilitation programs did not actually lead to recidivism. On the contrary, it was argued that Martinson’s conclusion was based on programs reviewed before improvement of theories of crime causation and correction. There is no doubt that rehabilitation programs are effective in some conditions and detrimental in others. This means that the view by Martinson was highly pessimistic and paid no attention to capacity of some offenders to rehabilitate under favourable conditions. In Home Office Study (1999), there was no substantial disparity between re-conviction rates for custody and community penalties. The study revealed that 56% of the offenders who were under community penalties were reconvicted within a time span of two years hence placing doubt on the role of rehabilitation in preventing re-offending. Home Office research further raised the possibility of offenders with multiple social problems being reconvicted. It is essential to mention that even though a person is not reconvicted, it does not mean that such person has stopped offending. Legislations on Rehabilitation and Employment Rehabilitation of Offenders Act (1974) otherwise called RAO and the Police Act of (1997) are the two major legislations covering on employment of persons with criminal records. ROA provides for long rehabilitation period for adults with a majority taking at least five years to be “spent” or rather forgotten. More so, there have been changes on the Act that have seen an increase in rehabilitation period for particular offences. From the Act, sentences of two and half or more years are never spent contrary to some parts of Europe where all offenses are subject to become spent (NIACRO, 1996). ROA also does not enforce disclosure but non-disclosure. The impact is that employer is supposed to sort information on criminal records and not the other way round. Contextually, there is no need to disclose unspent convictions or penalise a person on later discovery. Nonetheless, other fraudulent acts such as tendering false information on unspent conviction might culminate to dismissal. Chapter 53 of the Rehabilitation Act of 1974 guides rehabilitated individual and employers. The act is fundamental for ex-offenders who must be well versed this piece of legislation to speed up the process of job application. Section 4 emphasises that a person who has successfully rehabilitated shall be treated as one who has not committed any offence. In such a case, the person shall not be asked, in any proceedings, issues relating to past convictions. The section further provides that no evidence shall be admissible before a judicial authority to confirm that such person was an offender who was subject to conviction. It is apparent that the section seek to protect the rehabilitated offender against undue discrimination either in employment or when seeking other social, economic, and economic consideration. At the same time, lifelong unemployment after a single offence is subsequently prevented by the Act. The provision of the act takes effect after certain period of rehabilitation as determined by the court of law. On several occasions, convictions are “spent” after an approximate period of five years with specific attention paid to quantity and intensity of crimes committed. However, there are some exceptions such as where an offender has served more than two and half years in prison. Convictions in this case will not be spent and the offender is obliged to inform employers of their past criminal situations. There is no doubt the stated period should be lessen to allow a rehabilitated offender to shape personal life as opposed to waiting for five years for offences to be spent. Rehabilitation of Offenders Act 1974 additionally gives an explicit account of various employment, occupations, and professions that are excluded by the Exclusions and Exceptions Order 2003. The exceptions fall in three categories i.e. work involving matters of national security, work that bring a person to contact with susceptible groups, and professions with legal protection. These Exclusions and Exceptions allow employers to ask for details of both spent and unspent convictions. In this scenario, an ex-offender will be required to disclose information about spent as well as present convictions provided the employer notifies the interviewee of its exemption from the Rehabilitation of Offenders Act 1974. The statute, “Exceptions Order” therefore serves the purpose of protecting the public by requiring exposure of spent convictions. While the statute protects the public, a person’s life is destroyed by the exposed criminal record. Daily life experiences indicate that organizations requesting an assessment of criminal record would often reject an application from an ex-convict. In respect of areas covered by the Exceptions Order 2003, prospective employer is entitled to knowledge about candidates past convictions. The employer will factor in both spent and unspent when analysing suitability of an individual for a job. Information concerning financial service sector is restricted so not given to an employer or any other authorised body when investigating previous convictions. The Exceptions Order provides that questions that relate to previous convictions can be asked of people seeking to train or those currently training in professions, offices, and occupations mentioned in the Order 2003. There is no doubt that the Order focuses on public interest by ensuring that people in specific fields are of high integrity. Conversely, the Order should be reviewed to allow offenders who have successfully rehabilitated to serve in areas of their proficiency. There is no necessity in denying a reformed person a chance build professional ability. The Police Act (1997) enables employers to access criminal records of an applicant for a job. The records or rather criminal information is accessed in three levels two of which furnishes information on jobs under special treatment by the ROA. These information covers on unspent convictions. The third, which is the lowest level of access, is via Basic Disclosure. This is where employer accesses information if an individual presents a copy. The Police Act restricts higher level of Disclosures to financial jobs that are vulnerable to crime. Availability of Basic Disclosure for all jobs goes a long way in protecting employers from crimes that may be committed by ex-offenders. Some employers place employees in positions that require trust thus the need to conduct thorough pre-employment checks. Owing to this observation, Criminal Records Bureau was created to supply Basic Disclosures by utilising police and other criminal records. While the intent of Police Act is to protect employers, employees, customers, and clients, its influence on employment of ex-offenders is adverse. Rehabilitated individuals often lie about their criminal record by way of inaccurate or partial disclose. These persons go to an extent of providing misleading information just to secure a job. Those who succeed in securing a job after supplying false information may be dismissed in the end. A survey by Metcalf (2001) explicitly addressed how employers and employees react to criminal records. The survey revealed that unemployment tends to rise with increased use of criminal records by employers who are exposed to Basic Disclosure. Employer reaction to criminal record is also determined by an understanding and perception of specific offences. An offence such as drunk and driving may not be handled seriously by an employer mainly because of its little correlation with a vacancy. Drunk and drinking is easily seen by employer as a situation of “high spirits.” Several organizations have formulated their own policies to give directions on employment of rehabilitated offenders or rather ex-offenders. One such policy is Equal Opportunities Policies, which reduces discrimination during selection process. A research done by Metcalf (2001) affirms that most of these policies exist in large organizations. The research further elaborates that financial intermediation in addition to community and social or personal industries were less likely to have Equal Opportunities policies. Besides, most organizations with formal policies excluded rehabilitated persons from any employment vacancy. To counteract this negative reaction to criminal records, reassessment needs to be done on rehabilitation period presented the by ROA. This is because employers may classify long period convictions as irrelevant in recruitment stage but still consider it as a selection criterion. Removing barriers to employment It is apparent from the analysis above that rehabilitated offenders are highly disadvantaged in the labour market, a phenomenon emanating from characteristics and employer reaction to criminal information. To curb unemployment among ex-offenders, schemes and other provisions are formulated to increase their participation in the labour market. One of the schemes is preparation for employment after the rehabilitation period. United States and parts of Europe formed schemes for ex-offenders, which were meant to aid in employment. In a research by Fletcher (1998), there are over 190 community-based projects in U.S managed by Training and Enterprise Councils to assist in meeting employment and training needs of ex-convicts and rehabilitated persons. In the same note, evaluation for effectiveness should be done to ensure that ex-offenders are deriving substantial benefits in terms of employment prospects and not merely wasting time. Roberts (1997) investigated a career development project for Native American “parolees” who had several barriers to employment. The outcome of this investigation was that 75% managed to secure a job. In the same line, an Australian study by Braithwaite (1980) showed that ex-offenders, who had assumed trade or vocational training before or after conviction, were amongst those who secured skilled job. This conclusion was reached after monitoring Employment Service contract of 300 prisoners in 1970s. United States provides for targeted training to equip ex-offenders with skills that are in high demand. Even so, returns obtained from training surpass the specificity of skills and includes responsibility, self-discipline, good work habits and self-esteem (Anderson, 1981). This discovery should therefore motivate policy makers to expand rehabilitation programs instead of concentrating on punitive measures like locking up offenders in prison cells. In other words, rehabilitation is like a learning process where a learner is assisted to discover own potentials. Bridges (1998) did a piece of work to weigh how probation agencies reduce reoffending and increase employability of ex-offenders. From the prolific work done by this writer, person with criminal records were likely to gain employment at the end of supervision if their employment needs are met. The role of supervision is more often than not carried out by Probation Service or a partnership agency. Pessimistic prison officers, probation officers, and advisors at the job centres offer minimum assistance and this is particularly true with generalist like offices at job centres who are ill equipped to handle cases of offenders who have undergone rehabilitation. Recommendations In consideration of the fact that persons who have successfully rehabilitated end up suffering from discrimination, the following recommendations are necessary: 1. Reduce the time spent in rehabilitation by reviewing Rehabilitation of Offenders Act. This will involve a reassessment of the possibility that the offender will violate the law while working. The effect is that some offenses will be immediately spent. The review will further serve the purpose of granting the rehabilitated offender a chance to shape one’s life in a positive manner. This is because much time is redirected to economic events of earning a living instead of five-year period for spent. 2. There is a necessity to increase information on existence of Rehabilitation of Offenders Act. A research by Buffery, (1998) indicates that only half of the employers have information concerning main provisions in the Rehabilitation of Offenders Act. Ex-offenders too should be educated on existence of RAO. This will assist people with criminal record to obtain knowledge on implications of the Act. In this context, an offender will be aware of the time during which offences will be spent. 3. The Police Act should be reviewed. This Act increases the use of criminal record information against an ex-offender in recruitment and subsequently opens an avenue for the investigation of criminal record amongst the workforce. The likely effect is increased difficulty of getting a job, dismissal, inflexibility in jobs, and high unemployment. Generally, crime in society will automatically increase as a consequence of unemployment. A lawless city is frequently characterised by regular unemployment rates. Specifically, the Police Act needs to be reviewed in a way that rehabilitated offenders are posted to certain areas where they could be monitored for a number of years before being allowed to enter the public sector. This way, discrimination is avoided whilst criminal information is kept safe with relevant authorities. Conclusion This paper succinctly offered a discussion on rehabilitation of offenders. At the onset of the essay, aims of rehabilitation were tackled with specific reference case laws. The concept of recidivism emerged as the ultimate goal of rehabilitation of offenders. Even though the idea of rehabilitation has bright intention, it was dismissed by Martinson on grounds of practicality. At the same time, Home Office Study of 1999 brought to surface a situation where offenders who were under community penalties re-offended within a time span of two years. This literature also paid attention to legislations on rehabilitation of offenders with specific emphasis on ex-offender employment. Finally, three recommendations on policy action were highlighted. Reference List Anderson, D.B., 1981. ‘The relationship between correctional education and parole success’, Journal of Offender Counselling, Services and Rehabilitation, 5(3/4), 13-25. Bridges, A., 1998. Increasing the Employability of Offenders: An Inquiry into Probation Service Effectiveness, Probation Studies Unit Report No. 6, University of Oxford Centre for Criminological Research. Bonta, J. & Andrews, D. A., 2007. Risk-need-responsivity model for offender assessment and rehabilitation. (User Report No. 2007-06). Ottawa: Public Safety Canada. Braithwaite, J., 1980. Prisons, Education and Work. Queensland: University of Queensland Press. Buffery, C., 1998. Promoting employment opportunities for ex-offenders. Cambridgeshire Probation Service and Greater Peterborough Chamber of Commerce, Training and Enterprise. Fletcher, D., et al., 1998. Building Bridges into Employment and Training for Ex-offenders. York: Joseph Rowntree Foundation. Home Office Study.,1999. Explaining reconviction following a community sentence: the role of social factors,). Martinson, R., 1974. What works?—Questions and answers about prison reform. The Public Interest 35 (Spring): 22–54. Metcalf, H., Heather, R. and Tracy, A., 2001. Barriers to Employment for Offenders and Ex-offenders. Leeds: Corporate Document Services. NIACRO., 1996. Regulating the Yellow Ticket: The laws, policies and practices which affect the employment of people with criminal records in the European Union. Belfast: NIACRO. Raynor, P and Gwen, R., 2009. Why Help Offenders? Argument for Rehabilitation as a Penal Strategy. European Journal of Probation 1(1), pp 3 – 20. Roberts, R.L., Harper, R. and Preszlier, B., 1997. ‘The Effects of the Fresh Start Program on Native American Parolees’ Job Placement’, Journal of Employment Counselling, 34(1): 115-123. Read More