One is only justified in punishing individual offenders on the basis that they deserve punishment, it hence follows only those receiving punishment should deserve it - discussed

Incapacitation simply removes a person’s ability to commit further crime, whether it be through removal of driving licence, imposing a curfew or imprisonment. In the case of Sargent Lawton LJ described persons suitable for such punishment as “offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases the only protection which the public has is that such persons should be locked up for a long period.” Lawton LJ mentions only persistent criminals here, but one must also consider those who commit ‘one-off’ crimes so hideous that can only be responded to by custodial sentences.

Is the imprisonment of one individual not also the punishment of people dependant on them? Take a family where the children rely completely on their father. The father commits a crime for which he is sentenced to a period of imprisonment. The children, been incapable of living alone, are forced to move into an environment where they may not thrive. Surely this is punishment of individuals (the children) who do not deserve punishment.

Rehabilitation is the final of the ‘forward-looking’ theories and also the most ambitious development of penal theory. The intention here is self-explanatory, namely that to reform or improve offenders. The ultimate goal is to achieve conformity through positive change and motivation, not through fear – the rawest interpretation of deterrence.

Retribution can be split into a further four categories, namely vengeance, expiation, censure/denunciation and desert, the latter two of which are the more commonly accepted today. Vengeance, being the seeking of suffering of some description to get revenge, can operate on two levels. Firstly, it is asserted that punishment satisfies the affected person(s) desire for vengeance and the state is simply enforcing the vengeance to prevent private retaliation. Secondly, it has been argued that there is a public desire for vengeance based on human instinct to retaliate; such reactions are desirable as an outlet for our aggressions; without these, aggressions would be so repressed as to turn into anti social behaviour. Today such views are heavily criticised and even claimed to  “represent the breakdown of human intelligence, as well as good will. It shows perhaps the ugliest phase of our human nature”.

Expiation is the process of ‘paying of debt’ owed to society through suffering. The intention of this is purification to such an extent that when punishment is completed, the offender may be able to reconcile with society with a ‘clean slate’. The effectiveness of such a punishment is dependent on the will of the offender to work off his/her guilt.

The third aspect to the retribution theory is that of censure or denunciation.  Here the aim is to achieve public condemnation of a crime. An example of this occurred in the trial of the notorious ‘Yorkshire Ripper’ who raped and killed many women. He pleaded guilty to manslaughter which the prosecution were content with but the judge insisted he was to be tried for murder, which if found guilty would result in life imprisonment. The public trial was costly so why did the judge not accept his original plea which would have been more than likely to result in the same sentence, namely that of life imprisonment? The answer lies solely in public condemnation of such horrific offences.  Lord Hewart once quoted, “Justice has not to be seen to be done, but manifestly and undoubtedly be seen to be done.”

Finally, the theory of ‘just deserts’. This has fast become one of the leading views as to why we should punish criminals. The principle is that offenders deserve punishment which was clearly expressed in Andrew von Hirsch’s, Doing Justice:

“In everyday thinking about punishment, the idea of desert figures prominently. Ask the person on the street why a wrongdoer should be punished, and he is likely to say that he ‘deserves’ it…”

The theory of just deserts is primarily based on Kant’s work on autonomy and free decision making. It states that all people owe duties to others not to violate their rights and compliance with the law sacrifices a part of everyone’s freedom. People who commit crime therefore place themselves at an advantage to the law abiding. Punishment is intended to remove this unjustly gained advantage from lawbreakers. Sentencing through deterrence or incapacitation is not deemed appropriate – the punishment is said to ‘fit’ the individual crime, i.e. punish no more and no less than the magnitude of the advantage gained. It may be concluded from this that like crimes produce like sentences.

This theory would ideally provide a completely fair justice system. Those who break the law, if caught, would be punished to the extent of the advantage that they gained. General consensus of opinion would surely concur this to be right, however, the theory has its flaws. Let us start by considering those crimes to which the offender gains no advantage. Andrew von Hirsch said:

‘A person who violates the rules has something others have - the benefits of the system [of mutual non-interference with others’ rights] - but by renouncing what others have assumed, the burdens of self-restraint, he has acquired an unfair advantage. Matters are not even until this advantage is in some way erased … Justice - that is punishing such individuals - restores the equilibrium of benefits and burdens…’

Having understood why criminals are said to be at an advantage, let us consider the following example. A man consistently returns home drunk to his wife. In his inebriated state, he habitually beats her. She is defenceless against his greater physical presence and too terrified to tell anyone. One night he returns home and assaults his wife as usual but this time, without thinking, the wife picks up a knife and stabs him. He dies. It can not be said here, in this set of circumstances, that the wife has gained an advantage by murdering her husband. Up until that night she was living her life at a ‘disadvantage’ and it was simply her right for the continual assault to stop. She had gained no advantage by the removal of a disadvantage.

Although this is an extreme example, this clearly highlights an inconsistency within the criminal justice system if crimes where no advantage has being gained, are been sentenced using same principles as those bearing an advantage.

As implied above, the result of the vast majority of crimes is that the offender is placed at an advantage with respect to the rest of society.  An example where this is clearly shown is in that of theft. By stealing another person’s property, e.g. £500, the offender is at an advantage in that he is £500 wealthier. Von Hirsch would say that the offender also gained the advantage of breach of his self-restraint to which I would agree. However, from this we can say that every time a crime is committed, the breach of self-restraint is the same, hence sentencing for this ‘breach’ should be the same. However the commonly accepted approach leads to a different conclusion. Take a man, Adam, who has been aggravated by another, Ben. For Adam to turn to him and verbally abuse him would imply a slight breach of self-restraint in comparison to Adam turning round and inflicting grievous bodily harm on Ben. The levels of ’breach’ for different crimes thus vary, and hence sentencing should be proportionate to the degree of breach.

It is clear in the case of theft, the sentence given must not only remove the advantage, but also punish the offender’s actions. A deterrence effect will be a positive by-product of such a sentence. At this point it is worth noting that although we have just agreed that punishment for theft should be equal to the total advantaged gained i.e. actual or physical gain and also the ‘personal satisfaction’/mental advantage gained from abandoning the duty of self-restraint. Placing a value on this ‘personal satisfaction’ gained is no easy task. Fortunately, the English system utilises precedent for sentencing and judges use this in deciding the magnitude of the ‘personal satisfaction’ gained from a crime. It follows that the severity of different crimes was decided long ago with their corresponding sentences been accepted through generations, albeit modified with time, to leave us with the set of moral values that the reasonable man accepts today. Consequently, our moral values have a close correlation with the lessons of educative deterrence and for this reason murder is considered more serious, and punished more severely, than petty theft. If a different judgement had been held by judges when criminal law was in its infancy, this would have resulted in different set of moral attitudes accepted today. The greater this ‘personal satisfaction’/ mental advantage gained, the more serious the crime and hence punishment is proportional to the severity of the crime.

The following example concerns the scenario where it is possible for the offender to be punished by less than the advantage gained.  Let us consider the act of illegally dumping litter. Imagine a warning sign in a lay-by stating the maximum penalty for dumping to be £200. A person proceeds to dump a quantity of litter so large that it would cost him greater than the maximum fine to dispose of the waste in an authorised manner. In this case that person has effectively been punished less than the monetary advantage he gained. (Furthermore, his total advantage may have actually been even greater than the sum saved if the lay-by was in a more convenient location to him, and he derived satisfaction from the disregard of need for self-restraint etc.)

Where punishment exceeds the gained advantage unwanted reprisals can occur. The proportionality aspect of desert theory clearly disagrees with the notion of extreme punishment (that bearing no relevance to the seriousness of the crime) for minor crimes to be an effective form of deterrence. I also believe deterrence can be achieved at a lower social cost – although again hard to prove – as such extreme sentencing can lead to public sympathy for the offender, having negative effects on educative deterrence. Ewing has expressed these views on erratic sentencing excellently:

“Instead of reaffirming the law and intensifying men’s consciousness that the kind of act punished is wrong, they will have the opposite effect of casting discredit on the law and making the action of the law-breaker appear excusable or even almost heroic.”

I can see no reason as to why Ewing’s views can not also be applied, although to a lesser extent, to exemplary punishment.

Can we deduce from this theory of ‘just deserts’, that there is no room for individualised sentencing? In order to answer this, we must address what we mean by individualised sentencing. In my opinion, sentencing may ‘individualised’ in two different ways, through consideration of socio-economic group or mitigation/aggravation associated with the crime. Let us consider the following example of theft for which a £400 fine was decided to be appropriate punishment. If the desert theory can still be reasonably applied there is clearly scope for individualised sentencing. John is a poor manual labourer with two children to feed. He sees a man sitting on a bench with his wallet beside him. In the spare of the moment, having quickly thought about it, he runs to the bench and steals his wallet containing £30. He had always intended to use the money to help feed his children. Jack is a well-off youth who knows this man regularly sits on bench on Tuesday afternoons. The following Tuesday he stole the man’s wallet to spend on nonessential goods. Does John deserve the same punishment as Jack? They have clearly both committed the same offence but, for example, mitigation relieves John of half the fine. John also belongs to a lower socio-economic group. A £200 fine represents his weekly wage meaning he would struggle to feed his children. To Jack, £400 would be a fraction of last years interest on his savings. This is clearly over-punishment for John and insufficient punishment for Jack. Using solely desert theory my opinion is this. Jack gains a smaller physical advantage, relative to his wealth, but the circumstances of the crime, i.e. planned and unnecessary, meaning he has breached a far higher level of self-restraint. His punishment is therefore less than the advantage he gained. John’s punishment removes more than the entire advantage (both mental and physical) that he had gained from the theft.

This view would lead us to believe individualised sentencing and the desert theory can not be synchronised. However, one can see this in a different light – to which I disagree. Although unknown at the time of the theft, the amount of money in the wallet, and hence the physical advantage gained, was always going to be greater for John than Jack.  Both were adults capable of reasonable thought so their levels of self-restraint for the same crimes are similar – a small fluctuation could occur here in terms of difference in moral opinions. This means John received a greater advantage from the act (i.e. £30 meant more) than Jack and hence should be punished accordingly.

To conclude, I think it is relevant to put the theories discussed throughout this essay into a more practical setting, and see how the sentencing practices we see operating today have been influenced by these theories.

With the exception of ‘psychopaths’ I believe that only those who deserve punishment should be punished. The suggestion here was to punish a psychopaths’ child simply because he was incapable constructively responding to punishment. This is an interesting concept, but as a practical application, I would disagree.

The desert theory is in my view the most practical theory for delivering appropriate punishment when considering the huge variety of crimes committed. In general it’s ‘fitting the crime’ basis is fair and rightly manifests that the sentencing of the crime should be proportional to the severity. However, it has its limitations. It appears unable to incorporate individualism into sentencing. The example of John and Jack highlighted the requirement of this in order to keep society content with its justice system – alternatively reprisals of a similar nature to those suggested by Ewing may occur. It is worth noting here that some crimes have sentences determined by legislation which either removes the scope for individualised punishing or at least sets limits or constraints. Murder, for example, carries a mandatory life sentence; an automatic driving ban is implemented after a positive result for drink driving etc. Theoretically it would therefore be possible to regulate a society consisting of just these types of crimes with a desert sentencing policy. Censure and denunciation are also hard to achieve with the desert theory, although this would not present an immediate problem as these are closely related to deterrence which can function under a desert sentencing policy – excluding extreme and exemplary sentencing.

Desert, censure, expiation, incapacitation, rehabilitation, deterrence and vengeance are all extremely effective against certain crimes, nevertheless, the sole application of one of these would be unsatisfactory at dealing with the practical reality - a huge spectrum of offences and circumstances.

What English society needs, and has acquired, is an effective justice system which it believes to be fair. Our system employs a cocktail of all the punishment theories mentioned giving judges a range of sentencing measures to apply using their assessment of the crime, it’s circumstances and the criminal. Except in circumstances where the crime carries a mandatory penalty, Judges have the discretion to individualise sentencing. In my opinion, this is correct both by reference to the theories of punishment, and equally importantly, by society’s general acceptance.