#10532 - Theories Of Punishment - Criminology

First crime was committed in the Garden of Eden; Adam knew he was not supposed to eat the apple but he did anyway. Punishment was being banished from the Garden of Eden - seems a bit disproportionate, such a harsh crime just for stealing an apple! But he was not just simply eating the apple - he wanted to gain power that would give him a God-like status. And what about Eve? What punishment did she deserve? She was led astray by Adam who knew the full implications, while she did not fully understand. Was either of them more culpable? No, they were both held just as culpable as each other. Did the sentence do them any good?

• Their children went on to commit the first murder. The mitigation would probably include the criminal background of the parents. This would not have happened had they not been expelled from Paradise. The sentence was too severe.

In community there is a profound unease surrounding crime, a fear and concern about sentencing decisions handed down in court.

• BCS 2004, 76% of those surveyed thought sentences were too lenient. Judge says this is alarming, it suggests that judges, (who are, remember, public servants) are not doing their job properly.

• Statistics say the majority of the population overestimate the amount of violent crime.

• Comparison is made between two newspapers which detail changes in crime levels, when compared they show very inconsistent findings. Clearly something is wrong.

Lord Bingham has noticed that while the prison population is up, and judges and magistrates have been sending more and more people to prison, they are being criticised for handing down more lenient sentences! This does not add up. Furthermore, the UK has one of the highest custodial sentencing rates in Europe!

S142 CJA 2003 - purposes of sentencing

• punishment

• crime reduction (including by deterrence)

• rehabilitation

• public protection

• reparation

These purposes have to be balanced in the sentencing decision, and the problem is that they are not always consistent and may actually conflict.

First, the nature of the crime must be considered, in the light of contemporary society.

• Compares the penalty for blasphemy during Henry VIII’s Parliament (boiling alive) and now, it’s not considered a crime at all.

• Also consider the culture, and the community which the judges serve. Notes an Indian case where a man shot his wife’s lover, judges were shocked that a prison sentence was even being considered, because it was thought that he was protecting the honour of his family. Judges must reflect the views of the community which they serve.

S143 determines the seriousness of the offence.

• Consider culpability, harm caused (or harm that might foreseeably have been caused), and where there are previous convictions the court may consider this an aggravating factor where it is relevant to the current offence.

• Uses the example of two drivers; one has been drinking heavily and is driving dangerously, but luckily he causes no harm on the roads. Another driver is driving perfectly normally, but because his children are being loud in the back and his wife is unwell he is not paying full attention and causes an accident. He is guilty of causing death by dangerous driving, whereas the first driver is not guilty of anything at all. But who is morally more to blame?

• Parliament has made it clear that where there is ACTUAL harm there is a higher level of culpability.

The victim.

• Note, this is talking about the IMPACT on the victim, not the wishes, as the court is not exacting private revenge. Cannot give any weight to the level of forgiveness the victim is willing to exercise.

The defendant.

• A human with emotions, consider the level of remorse, whether there are tears in the court room (tears of remorse or self-pity?) etc.

Judge takes quite a religious approach to sentencing. Takes the view that one day we will all have to face a judge of higher authority than any judge on Earth, who will have to weight our thoughts and virtues in the balance.

When a judge imposes a non-custodial sentence he has to consider how that will be perceived. It is for this reason that reasons must be given, particularly where the sentence appears to be unduly lenient.

5 main problems with perception that judges are overly-lenient.

• Victims will think that nothing will happen to the offender, so they will not bother reporting the crime. Offender will get away with it!

• Fear of crime will increase, this is socially destructive.

• If individuals do not think the courts are dealing with the punishment of the offender appropriately, victims may take the law into their own hands and conduct acts of revenge.

• Growing division between community and judiciary (who exist to SERVE the community).

• Where there is fear of unpunished crime, there may be willing acceptance of measures which curtail individual liberties, said to be “necessary” for public perception.

Conclusion: perception is critical. The judge has a very difficult task in weighing the purposes of sentencing and conflicting interests, in order to determine the best outcome for each case. Not an job, but that is how the sentencing decision is made. (Bit of an underwhelming ending....)

Desert refers to deserved punishments and is often called doing justice, retributive punishment and just punishment.

CJA 2003 refers to desert as only one of 5 purposes of sentencing in s142, and the Act is muddled by the apparent focus on proportionality as the central principle in s143 and also by the SGC.

One of the central criticisms of desert in English law is that it would seem to fail to avoid avoidable crimes. Whereas in the US it is considered inappropriate for other reasons, namely that it is overly harsh and favours prison above all.

Article argues that the objections are valid, but notes that there is a distinction to be made in the debate about the different types of desert; vengeful desert, deontological desert and empirical desert. Says that in order for an accurate assessment of desert to be made, the three conceptions of desert must be distinguished and judged on their own terms.

Vengeful desert: an eye for an eye...Encourages punishing the offender in a way that mirrors the harm that he has caused, “lex talionis”.

• Kant: criminal cannot complain about his punishment, he has brought it upon himself, what happens to him is what he has perpetrated on others.

• Some say that lex talionis does not require the exact harm that was inflicted on the offender but simply something of a similar deprivation, the punishment must be proportionate and must “fit the crime”.

• Overriding focus on the harm done, so the main thing to note is the impact on the victim. In willing the crime, the offender willed the same level of harm to be inflicted on him. This is retributive justice.

• Institutionalization of revenge

Deontological desert: focuses on blameworthiness of offender by reference to moral philosophy. It is morally fitting that person should suffer punishment that is in proportion to his wrongdoing.

• Requires broader assessment than that required for vengeful desert.

• Offender does not deserve punishment for the act that he has done, but for the personal responsibility that lies with him.

Empirical desert: also refers to blameworthiness of offender, but instead of focusing on philosophical justifications, it turns to community intuitions about justice.

• Studies the factors that drive people’s assessment of blameworthiness. The data is collected from social science studies, for example by getting people to “sentence” a range of carefully created cases.

• If we track community intuitions about justice, the law gains access to the power of stigmatisation.

• System is undermined by distribution of liability based on community perceptions.

Differences between vengeful desert and other types of desert - vengeful desert focuses mainly on the amount of punishment. The other types focus ensuring the offender is given an appropriate sentence in terms of placing in his ordinal rank amongst various degrees of blameworthiness.

Vengeful desert is very concerned with the method of punishment. Ideally, a murder would be met with the death penalty. Conversely, deontological and empirical desert are only concerned with the ordinal ranking of blameworthiness. Not interested in what the method of punishment is, as long as it has punitive bite.

While there are similarities between deontological desert and empirical desert, there are also significant differences. D desert focuses on the “right” and “good” whereas E desert has no such foundation and looks merely to community intuition when it comes to blameworthiness.

Also a difference in the underlying theories of the two ideas; empirical desert focuses on utilitarian notions of effectiveness, whereas deontological desert focuses on principles of justice independent of personal/community opinion.

The utility of desert:

• Potential to stigmatise violators. Cost-free method of control. In order for system to be able to stigmatise it must have moral credibility with community.

• Ability to shape and maintain moral principles

• If what the community perceive to be condemnable is encompassed by the law, it is more likely to be accepted as authoritative, and to be followed.

The system’s credibility derives from just desert.

Empirical desert relies on community intuitions. But this has a disadvantage;...