Modified (side-constrained) theories of consequentialism have failed to overcome the enduring problems created by the pure consequentialist theory of punishment This essay is going to concentrate on the second type of modified consequentialism: Soc

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Criminal Law 2018                20378041

Question A

‘Modified (side-constrained) theories of consequentialism have failed to overcome the enduring problems created by the pure consequentialist theory of punishment’

This essay is going to concentrate on the second type of modified consequentialism: Societal Defence.

The underlying problems produced by the consequentialist theory of punishment have proven short-lived within the modified theories of consequentialism.  The pure consequentialist theory provides four main concepts in which it acts to punish an individual who has committed a crime.  The concepts cover incapacitation, deterrence, reform and rehabilitation.  

According to the modified consequentialist theory,

“punishment is used as a deterrent upon the individual’s use of threats or physical force in defence of her/himself or others”.  

Farrell’s describes this idea that “punishment is essentially a matter of self-defense.  The discussion in the section concentrates on the fact that threats of harm is used as a deterrent, and the possible consequences of severe ‘punishment’ are inevitable if it is disregarded.

Relating back to the question, we can see that even though there are problems within the pure consequentialist theory of punishment.  The modified theories have not ascertained the extent of the problems, which it needs to be adhered to.  Presently we can see that the pure theory has the main concepts (as seen above) that it uses in order to punish an individual.  By using these forms of punishment it has not been able to proportion the severity of crime in relation to the crime itself.  By deterring future crimes it was not able to sustain the original concept of why it was formed.  Its original aim which was to deter future crimes had a minimal effect as some forms of punishment were failing.

Rehabilitation is a form used that has raised many criticism as to its effectiveness.  Martinson’s view clearly demonstrates this,

“with a few isolated exceptions, the rehabilitative efforts that have been reported so far had no appreciable effect on recidivism”.

There has been little change in criminals re-offending again as the rehabilitation process does not seem to operate as it should in minimising re-offending behaviour.  Originally established to ‘cure’ the individual and reinstate them back into society.  It has been scrutinised as it only concentrates on the individual and does not consider external factors like their background and social standing.  Punishment should be in the form of ‘inflicting’ the individual not helping the individual to overcome his unmoral sub-standard in society.  This in turn did not give adequate punishment to offenders who deserved proportionate sentencing.  An offender does not merely require to be adjusted to conform back into society, but also needs to have appropriate sentences given to them which they deserve.   The rehabilitation process has proven to be unsuccessful time and time again, and in return crime rates have increased instead of declining.  The pure theory has no doubted failed to uphold its purpose in preventing offenders from committing crimes.  This seems to be one of its biggest downfalls in relation to the prevention of crime.

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The consequentialist approach does try to intervene on this issue by adjusting its approach in concentrating punishment solely on the offender, by redirecting ‘pain’ to fall on the offender.  It still does not completely remove the issue of being proportionate to the crime committed.  Farrell’s concentrates on deterring the individual defensively and not by using them as an example to society.

Originally deterrence was a means to prevent offenders from re-offending, but by the offenders being ‘guinea pigs’ their sentence was not proportionate to their offence.  The public is perceived not to commit a crime if the sentence ...

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