Punishment is beneficial because it deters, incapacitates and rehabilitates" Critically analyse this statement Introduction The aim of the essay is to define the various aims of punishment
"Punishment is beneficial because it deters, incapacitates and rehabilitates"
Critically analyse this statement
Introduction
The aim of the essay is to define the various aims of punishment and the justification for its application. Also, to identify, analyse and critically evaluate the beneficial effect of the various theoretical approaches to punishment. Each theoretical approach provides a mechanism that attempts to tackle and reduce crime by having a possible detersive effect on a potential criminal. The objective will be achieved by analysis of current prison population and rates of recidivism to identify the beneficial effect of retribution, incapacitation, rehabilitation and deterrence/
Punishment is a complex social institution that affects both social relations and cultural meanings. In order to prevent or limit crime, people have to be made to adhere to certain moral imperatives governing various forms of acceptable or unacceptable behaviour. Every developed society has a system of laws prescribing the infliction of various deprivations on people behaving in a non-conformist manner, both minor and severe. Therefore, law is conducive to punishment. However, the use of punishment requires a degree of justification for deliberately imposing suffering on certain members of society. Justification has been suggested by two conflicting thoughts. These are 'retributive theory' and 'utilitarian theory'.
Central to retributive theory are the notions of merit and desert. We think that people should receive what they deserve. This means that people who work hard deserve the fruits of their labour, while those who break the rules deserve to be punished. The idea has a long history in the criminal justice system. Cesare Beccaria (1764) first introduced the idea during the 18th century. He proposed that them who commit crime deserve to be punished, yet the amount of punishment should be proportionate to the degree of wrongdoing; it should not exceed that which was necessary to ensure that the criminal did not re-offend and that punishments should be visible (Jones, 2003, 95:3). In relation to the deterrent effect of punishment, Kant (1887:195) stated that even if the punishment was not a deterrent, crime still needs to be punished. Contemporarily, retributivist's measure just deserts by the culpability of the offender and the wrongdoing he commits. But is this focus too narrow? Harel and Parchomovsky (1999) argue for widening the retributivist focus beyond culpability and wrongdoing to encompass egalitarian concerns for two reasons. In their view, the retributivist approach gives an inadequate justification of bias crimes and cannot explain the state's egalitarian duty to protect the most vulnerable victims (cited in Simons, 2000:237).
'Utilitarian theory' of punishment rests on the principle that bygones are bygones and that only future consequences are material to present decisions, punishment is justifiable only by reference to the probable consequences of maintaining it as one of the devices of the social order. Foucault (1977:93) believed that "One must calculate a penalty in terms not of the crime, but of its possible repetition. One must take into account not the past offence, but the future disorder". Therefore, wrongs committed in the past are, as such, not relevant considerations for deciding what to do. "If punishment can be shown to promote effectively the interest of society it is justifiable, otherwise it is not" (Rawls, 1955, 3:13). From a classical approach, Jeremy Bentham (1748-1832) who formulated the principles of utilitarianism was of the opinion that the only logical way to deter crime was to ensure that the amount of pain derived from the forbidden activity was greater than the amount of pleasure. Although, it can be argued that there are certain acts of criminality not requiring a 'cost/benefit' analysis of pleasure vs. pain. For example, this analysis seems to assume that all forms of criminal behaviour are calmly assessed prior to a criminal act - is this always (or indeed ever) the case? Many crimes such as certain acts of passion, violence or murder could arguably be acted upon impulse.
The use of retribution was initially reintroduced by the Criminal Justice Act, 1991 and more recently, by the Criminal Justice Act, 2003. The 'penal range' in the U.K consists of discharges, financial penalties and community orders to custodial sentences. The most favoured method being that of fines which accounts for 71% of disposed sentences. The first objective for all sentences is the expression of denunciation (social disapproval) and retribution for the crime. The principle aim of punishment administered by the criminal justice system is to prevent and deter criminal behaviour and to be seen to be effective. Williams (2004, 30:2) suggests that the justice system must be seen to be strong, providing a high rate of conviction and low acquittal rate, and harsh and certain punishment. A high acquittal rate makes it look as if the criminal justice agencies are not performing their function correctly or are inefficient. The overall effect would be a failure to deter others from indulging in criminal activity.
Deterrence can either be specific, punishing an individual to prevent further offending, or general, the knowledge that everybody has that if they commit an offence, they will be punished. It is this knowledge that is meant to deter. From a classical approach, punishment was primarily justified in terms of general deterrence. General deterrence aims to offer penalties that act as a disincentive to the population as a whole. If the sanction is severe enough, in theory, there should be attrition in the crime rate. However, society must be prepared to send sufficient people to prison to convince the rest of society that the punishment is a reality. Deterrence in this respect is the avoidance of a criminal act for fear of the certain penalty. The perceived risk has more effect than the real risk. Specific deterrence prevents behaviour by increasing the severity of the sentence. However, for those individuals who have become institutionalised through repeat incarceration, would the increase in the severity of the sentence actually deter? For deterrence to be effective, there are various elements that must be in place. These are that the potential offender is aware that there is a new and more severe penalty that is to be operative. Also, the offender must have a clear belief that there is a substantial chance of being discovered and the certainty of punishment. As crime rates increase, police resources are stretched and the certainty of apprehension decreases. As crime rates decrease, police activity intensifies and the certainty of apprehension increases. The causal mechanism is what is questioned here. Does certainty of apprehension deter crime or does the low level of crime increase certainty? Statistics indicate that there has been a proficiency in detection levels (see appendix 1). Arguably, successful crime detection requires co-operation between law enforcers and the community. It could be suggested that the increasing use of 'Community beat Officers' is to bridge the information gap between the police and community. Obvious problems with deterrence, in relation to behaviours such as drug addiction are that, despite the fear of potential discovery and subsequent punishment, the addiction is a stronger force than the deterrent effect. It also assumes that prior to committing an offence the offender actually considers the possible chance of receiving a harsh sentence. As mentioned earlier, impulsive or opportunistic acts are often free of such a 'rational' assessment of actions and consequences. Also, that some crimes occur as a result of people exercising their 'free will'. Indeed, is this ever the case when considering crimes committed by an individual with mental impairment or those who may be intoxicated? The use of 'exemplary sentences' raises egalitarian issues of fairness. Is it right to impose a disproportionately harsh sentence on an individual in an attempts to deter others from offending?
Critically analyse this statement
Introduction
The aim of the essay is to define the various aims of punishment and the justification for its application. Also, to identify, analyse and critically evaluate the beneficial effect of the various theoretical approaches to punishment. Each theoretical approach provides a mechanism that attempts to tackle and reduce crime by having a possible detersive effect on a potential criminal. The objective will be achieved by analysis of current prison population and rates of recidivism to identify the beneficial effect of retribution, incapacitation, rehabilitation and deterrence/
Punishment is a complex social institution that affects both social relations and cultural meanings. In order to prevent or limit crime, people have to be made to adhere to certain moral imperatives governing various forms of acceptable or unacceptable behaviour. Every developed society has a system of laws prescribing the infliction of various deprivations on people behaving in a non-conformist manner, both minor and severe. Therefore, law is conducive to punishment. However, the use of punishment requires a degree of justification for deliberately imposing suffering on certain members of society. Justification has been suggested by two conflicting thoughts. These are 'retributive theory' and 'utilitarian theory'.
Central to retributive theory are the notions of merit and desert. We think that people should receive what they deserve. This means that people who work hard deserve the fruits of their labour, while those who break the rules deserve to be punished. The idea has a long history in the criminal justice system. Cesare Beccaria (1764) first introduced the idea during the 18th century. He proposed that them who commit crime deserve to be punished, yet the amount of punishment should be proportionate to the degree of wrongdoing; it should not exceed that which was necessary to ensure that the criminal did not re-offend and that punishments should be visible (Jones, 2003, 95:3). In relation to the deterrent effect of punishment, Kant (1887:195) stated that even if the punishment was not a deterrent, crime still needs to be punished. Contemporarily, retributivist's measure just deserts by the culpability of the offender and the wrongdoing he commits. But is this focus too narrow? Harel and Parchomovsky (1999) argue for widening the retributivist focus beyond culpability and wrongdoing to encompass egalitarian concerns for two reasons. In their view, the retributivist approach gives an inadequate justification of bias crimes and cannot explain the state's egalitarian duty to protect the most vulnerable victims (cited in Simons, 2000:237).
'Utilitarian theory' of punishment rests on the principle that bygones are bygones and that only future consequences are material to present decisions, punishment is justifiable only by reference to the probable consequences of maintaining it as one of the devices of the social order. Foucault (1977:93) believed that "One must calculate a penalty in terms not of the crime, but of its possible repetition. One must take into account not the past offence, but the future disorder". Therefore, wrongs committed in the past are, as such, not relevant considerations for deciding what to do. "If punishment can be shown to promote effectively the interest of society it is justifiable, otherwise it is not" (Rawls, 1955, 3:13). From a classical approach, Jeremy Bentham (1748-1832) who formulated the principles of utilitarianism was of the opinion that the only logical way to deter crime was to ensure that the amount of pain derived from the forbidden activity was greater than the amount of pleasure. Although, it can be argued that there are certain acts of criminality not requiring a 'cost/benefit' analysis of pleasure vs. pain. For example, this analysis seems to assume that all forms of criminal behaviour are calmly assessed prior to a criminal act - is this always (or indeed ever) the case? Many crimes such as certain acts of passion, violence or murder could arguably be acted upon impulse.
The use of retribution was initially reintroduced by the Criminal Justice Act, 1991 and more recently, by the Criminal Justice Act, 2003. The 'penal range' in the U.K consists of discharges, financial penalties and community orders to custodial sentences. The most favoured method being that of fines which accounts for 71% of disposed sentences. The first objective for all sentences is the expression of denunciation (social disapproval) and retribution for the crime. The principle aim of punishment administered by the criminal justice system is to prevent and deter criminal behaviour and to be seen to be effective. Williams (2004, 30:2) suggests that the justice system must be seen to be strong, providing a high rate of conviction and low acquittal rate, and harsh and certain punishment. A high acquittal rate makes it look as if the criminal justice agencies are not performing their function correctly or are inefficient. The overall effect would be a failure to deter others from indulging in criminal activity.
Deterrence can either be specific, punishing an individual to prevent further offending, or general, the knowledge that everybody has that if they commit an offence, they will be punished. It is this knowledge that is meant to deter. From a classical approach, punishment was primarily justified in terms of general deterrence. General deterrence aims to offer penalties that act as a disincentive to the population as a whole. If the sanction is severe enough, in theory, there should be attrition in the crime rate. However, society must be prepared to send sufficient people to prison to convince the rest of society that the punishment is a reality. Deterrence in this respect is the avoidance of a criminal act for fear of the certain penalty. The perceived risk has more effect than the real risk. Specific deterrence prevents behaviour by increasing the severity of the sentence. However, for those individuals who have become institutionalised through repeat incarceration, would the increase in the severity of the sentence actually deter? For deterrence to be effective, there are various elements that must be in place. These are that the potential offender is aware that there is a new and more severe penalty that is to be operative. Also, the offender must have a clear belief that there is a substantial chance of being discovered and the certainty of punishment. As crime rates increase, police resources are stretched and the certainty of apprehension decreases. As crime rates decrease, police activity intensifies and the certainty of apprehension increases. The causal mechanism is what is questioned here. Does certainty of apprehension deter crime or does the low level of crime increase certainty? Statistics indicate that there has been a proficiency in detection levels (see appendix 1). Arguably, successful crime detection requires co-operation between law enforcers and the community. It could be suggested that the increasing use of 'Community beat Officers' is to bridge the information gap between the police and community. Obvious problems with deterrence, in relation to behaviours such as drug addiction are that, despite the fear of potential discovery and subsequent punishment, the addiction is a stronger force than the deterrent effect. It also assumes that prior to committing an offence the offender actually considers the possible chance of receiving a harsh sentence. As mentioned earlier, impulsive or opportunistic acts are often free of such a 'rational' assessment of actions and consequences. Also, that some crimes occur as a result of people exercising their 'free will'. Indeed, is this ever the case when considering crimes committed by an individual with mental impairment or those who may be intoxicated? The use of 'exemplary sentences' raises egalitarian issues of fairness. Is it right to impose a disproportionately harsh sentence on an individual in an attempts to deter others from offending?
