#17851 - Themes, Trends, Challenges - Criminology

Introducing Criminology, Sentencing and the Penal System: Themes, Trends and Challenges

Developing Penal Policy

Key Issues

What is Punishment?

Key features of punishment include:

1. It rests on a moral foundation, expressing a moral judgment

2. Punishment stems from an authoritative source, usually the state.

3. Feinberg: censure or condemnation is the defining feature of punishment

There are two classical theories of punishment:

1. Retributivism: punishment is linked to the culpability of the individual and matches the severity of the punishment to the seriousness of the crime and culpability of the offender.

2. Utilitarianism: people are motivated by the pursuit of pleasure and the avoidance of pain, and so social and penal policies should be used to promote the greatest happiness of the greatest number.

   1. Links to deterrence, incapacitation and rehabilitation

Equality, fairness, and justice

Penal policies are made with consideration on equality and fairness as:

• Some groups may be selected for harsher punishment.

• Or apparently neutral policies have differential impact e.g. a fixed fine would be far worse on the poorer.

“Populist punitiveness” (Bottoms): where governments increase punitiveness to appeal to the public – used to justify increases in sentence severity

Human rights

Human rights are an important mechanism for theories of punishment:

Natural rights are significant to retributivist theory, which recognises the right of the offender to be treated with respect as an autonomous human being.

Rights are used to criticise utilitarianism (which strongly influenced the UK penal system), as utilitarianism sacrifices the individual’s rights for the wider public interest.

Rights are important for penal reformers:

• Rights are good in protecting prisoners and their rights

• Respect for human rights makes a system of punishment more legitimate

• BUT not all reformers believe in a rights approach

  • E.g. some Marxists theorists distrust rights because they are essentially individualist rather than collectivist, and because they fail to deliver substantive justice.

There are problems with defining rights in jurisprudence – there is disagreement over what rights mean and what they entail, etc.

• BUT one agreement is that there are fundamental rights existing beyond positive law – rights protect the individual from the state.

The ECtHR is an important influence on sentencing and penal policy – it has led to changes such as in treatment of offenders in prison, with increasing weight placed on the right to life, to procedural rights, etc.

Key influences

1) The role of political imperatives (political context)

• The political demand for social order has been seen as a key element to increases in incarceration – e.g. the 2011 England riots, when the Coalition govt was criticised for its failure to keep the streets safe and for the time taken to restore order.

• Powerful interest groups can also affect policy – e.g. the Prison Reform Trust of victim movements.

• Political need to pursue policies and practices deemed by the public as legitimate conflicts with economic imperatives – which priority wins depends on when the policy will be implemented.

2) The role of economic reasons (economic context)

In UK: conflict between Ministry of Justice and the Treasury over penal policy.

The costs of crime and punishment are:

1. Running costs – cost per prisoner in 2012/13 was 35 000.

2. Capital costs of building prisons.

3. Indirect costs – welfare support for dependants affected by imprisonment of the breadwinner and cost to the national economy with the loss of productive labour.

Spending on the prison and probation system in England and Wales had grown by 36% from 2004 to 2010 in real costs.

The costs of crime and punishment are paid by:

1. individuals who pay increased insurance premiums; and

2. the public whose funds finance law enforcement and punishment.

Solutions to the conflict between economic burdens and the public demand to reduce crime:

1. Represent fines and community penalties as punitive to win public support for them.

2. Privatise entire prisons or certain services within prisons – New Public Governance (Osborne)

3. What to punish – minor infringements vs more serious crimes

4. How to punish – a community sentence is cheaper than a custodial sentence.

   1. The death penalty is NOT cheaper

5. How much to punish – a heavier sentence is more expensive but could offer more opportunities for rehabilitation and thus cuts costs in the long term.

The prison population is at a record high, so government needs to balance public demand for to reduce crime with the economic burdens.

3) The role of public opinion and the media (social context)

• Public opinion is expressed through elections, polls, focus groups, etc.

• Since the late 1980s, public opinion in UK has been more favourable to punishment as the main response to criminal behaviour

• The populist punitiveness of govts can be problematic – it reinforces the view that crime can be controlled through punishment and leads to problems when harsher punishment does not succeed in this.

The views and attitudes of the public:

• Most of our knowledge of public opinion comes from the British Crime Survey – has confirmed a high level of fear of crime in the UK.

• Public opinion may be based on inaccurate views – there is a mistaken belief that crime is on the rise (BCS found that 60% of people thought crime rose in the country in 2010)

  • Yet it fell from 1995 to 2004 and continued to decline over the next decade (albeit less sharply and with fluctuations).

• The public tend to underestimate the severity of the criminal justice system in dealing with crime.

• The BCS showed that public confidence in the ability of the system to bring offenders to justice and reduce crime have increased since 2008.

Case Study: prisoners’ voting rights:

• McNulty et al found that media was heavily skewed towards opposition for prisoners’ votes. The arguments were framed in terms of a threat to parliamentary sovereignty, and thus the focus of the debate shifted to the relationship between the UK and Europe.

Effects of the policy include prison expansion

The prison population has increased since 1993 to 86 000 in 2015 – this is due to several reasons:

1. Increase in numbers in the crime-prone age groups

2. Increase in numbers of prisoners defined as ‘serious’ and as presenting a risk to the public.

3. CJA 2003 introduced the sentence of imprisonment for public protection (IPP) – it was abolished in 2012 but many IPP prisoners are still in prison.

What effect does this have?

• More pressure on the prison system and more offenders return to prison following a period in the community – overcrowding also has its own issues.

• UK now has the highest incarceration rate within Western Europe, at 149 per 100 000 of population in 2015. BUT these rates do not give figures of sentence length.

What are the possible solutions?

• The HC Justice Committee in its 2010 report said we must address the root causes of expansion, rather than focusing simply on providing more prison spaces.

• The problem is how to sell a reductionist policy which aims to reduce the use and extent of imprisonment.

• Conflict between reductionist policy and punitive populism

The influence of theory on penal law and practice

Compared to political and economic factors, the influence of penology and criminology is limited.

Penological principles

These principles are justifications of punishment, including

• Retribution

• Deterrence

• Rehabilitation

• Public protection

• Restoration of social harmony

What are the theories of punishment?

1. Retributivism: this punishes according to just deserts - assumes a free choice by a rational person who chooses how to act.

2. Utilitarianism: rewards and punishments used to channel behaviour into desirable ends and aims to change the offender’s behaviour.

3. New Penology: draws on New Managerialist and actuarial techniques to manage the risk of offending and reoffending – it has strongly influenced penal policy since 1990.

   • It uses statistics and technology to enhance the risk management of high-risk groups.

The penal policy context in sentencing and punishment

Policy trends

• The rehabilitative ideal:

  • 1972: introduction of the community service order to England and Wales showed optimism that an offender can be reformed

    • But the increase in crime and evidence of recidivism in the 70s and 80s led to a decline in the use of treatment and rehab in the 80s and 90s.

  • Now the rehabilitative ideal is gaining support, though prompted mainly by cost considerations – it survives in the probation service and other such programmes.

• Increased punishment: the CJA 1991 endorsed just deserts as the primary principle of sentencing.

  • Since then there are more criminal offences e.g. SOA 2203 or CDA 1998 for young offenders; and a trend of making alternatives to custody more punitive.

• Concern with value for money: since 1990 this has risen

• Human rights: concern for rights has increased, seen by the HRA 1998.

• More civil measures than traditional: trend towards use of fixed penalty notices (fines, etc.) to avoid the high cost of court processing.

• More specific sentencing guidance: the CJA 2009 set up a Sentencing Council with a greater statutory definition of its functions than its predecessors.

Key policy documents since 2000 which show the continuing importance of the factors above

Look to longer notes

Future directions 2015-2020

Under the current Conservative govt, privatisation will remain an important element of penal policy. There will be reductions in budgets for offender management...