Chapter 3: Legal Processes and Community Sanctions

Legal processes are among the proximate causes of patterns in the use of community sanctions. The precise nature of legislative changes and the actions of legal decision-makers are key aspects of the penal state that contribute to divergent patterns between jurisdictions and over time (Garland, 2013). Legislative measures, and how they are enacted and enforced across various stages of criminal processes, interact in complex ways that shape the use and effects of community sanctions.

Relationships between the legislature, judiciary and executive are important determinants of penal practice. The judiciary and executive have a significant influence on penal practice through contesting and shaping proposals for reform and through their interpretation and application of reforms. Freiberg (2016) describes a shift in Australia over recent decades toward the legislature exerting greater power, including by restricting the discretion of the judiciary and agencies of the executive at sentencing and in parole decision-making. He points to this shift as one factor that has contributed to more people being subjected to supervision in the community along with rising imprisonment rates.