The problem of the correct legal response to crime has produced passionate discussions within the study of criminology. The classical theories of justice present consistent legal action of all offenders who have committed identical crime while emphasising the notion of punishment as deterrence. Opposing this is the theory of the positivist school, which denies punishment as a preventative measure and instead promotes the rehabilitation of offenders through the recognition that each offender is an individual in their own right. In this essay, we will first understand the principles of proportionality and consistency and the importance of these principles in sentencing and then explore the effectiveness of both fixed punishment and open ended …show more content…
The principle of proportionality obliges courts to enforce sentences that allow a proportionate correlation to the offender behaviour in question. The principle drives the prevention of the burden in sentencing that is manifestly excessive or lenient. The sentence is supposed to express society’s emotions of the offense and allows dealing with an offender fairly (Kannai, 2004). It has been debated that proportionality is connected to retributivism (Demleteiner et al. 2003), however, proportionality has also been depended on to upkeep utilitarian objectives of penance, such as deterrence. It has been argued that a structure of justice that dispenses proportional sentences can motivate offenders to commit offenses of a smaller severity to obtain a lesser sentence if found (Von Hirsch & Ashworth, 2005) in turn presenting the principle as effective and a deterrent within itself. The principle is a major device for guaranteeing that rulings enforced upon offenders are reasonable. It functions to ‘restrain excessive, arbitrary and capricious punishment’ (Fox & Freiberg, 1999). It is of utmost significance to sentencing law and is a value that is engrained in defence for the basic human rights of individuals before the court (Fox,
The primary principle of sentencing is stated under section 718.1 of the Criminal Code, “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In other words the sentence must be fair to the offender while holding them responsible under mens rea; having a guilty mind. This idea holds that punishment has to be appropriate based on crime committed.
Mandatory sentencing refers to the practice of parliament setting a fixed penalty for the commission of a criminal offence. Mandatory sentencing was mainly introduced in Australia to: prevent crime, to incapacitate the offenders, to deter offenders so they don’t offend again, to create a stronger retribution and to eliminate inconsistency. There is a firm belief that the imposition of Mandatory sentencing for an offence will have a deterrent effect on the individual and will send a forcible message to the offenders. Those in favour argue that it will bring consistency in sentencing and conciliate public concern about crime and punishment.
The judicial system is based off the norms and values that individuals are held to within society. When a person is found guilty of committing a criminal act, there must be a model that serves as the basis of what appropriate punishment should be applied. These models of punishment are often based off of ethical theories and include retribution, incapacitation, deterrence, rehabilitation, and restoration. The retribution model of punishment views the offender as responsible for their actions and as such, the punishment should fit the crime (Mackie, 1982). Incapacitation is a form of punishment that removes an offender from society. This model protects
As some criminologists have debated, the methods and approaches to crime control have failed miserably. They are of the opinion that the criminal justice system fails in achieving its aims in rehabilitating criminal offenders. For example, a report made in the U.K claimed that 58 per cent of the prisoners released in 1997 were convicted of another crime (SEU, 2000). Some argue that it seems for the criminal justice system there is only one answer to crime control, a prison sentence. Nevertheless, some question how accurate this method is for some crimes in society. That is to say, that for certain crimes, taking the consumption of marijuana as an example, a prison sentence is not the solution, rehabilitating individuals should be the main priority and in certain cases if not the only
...lacks, and men. Furthermore, the competing paradigms influence public policy. Those that maintain acts as voluntary are more inclined to punish the individual or group, however those that are seen to act under determined forces, judge treatment to be more suitable. Even though these theories contrast, they still contain similarities which are shared in the new penology. Aspects are taken from all to create a new perspective on crime that centres on the management of offenders.
This paper considers the desert arguments raised to support retributivism, or retribution. Retributivism is "the application of the Principle of Desert to the special case of criminal punishment." Russ Shafer-Landau and James Rachels offer very different perspectives on moral desert which ground their differing views on the appropriate response to wrongdoing. In "The Failure of Retributivism," Shafer-Landau contends that retributivism fails to function as a comprehensive theoretical foundation for the legal use of punishment. In contrast, in his article "Punishment and Desert," Rachels uses the four principles of guilt, equal treatment, proportionality and excuses to illustrate the superiority of retribution as the basis for the justice system over two alternatives: deterrence and rehabilitation. Their philosophical treatment of the term leads to divergence on the justification of legal punishment. Ultimately, Rachels offers a more compelling view of desert than Shafer-Landau and, subsequently, better justifies his endorsement of a retributive justice system.
punishment is an asset to society: it is the only punishment that fits the crime, it deters potential criminals
During the 1970’s to the early 1990’s there had emerged two new approaches to the study of crime and deviance. The discipline of criminology had expanded further introducing right and left realism, both believe in different areas and came together in order to try and get a better understanding on crime and prevention. There were many theorists that had influenced the realism approaches such as; Jock Young (Left Wing) and James Wilson (Right Wing).
Truth in sentencing through the equal justice perspective punishes the criminals through equality, yet remains harsh to serve as a form of deterrence for future
This essay has identified sanctions imposed on offenders including imprisonment and community corrections. Described how punishment is justified with the just desert and deterrence theory. Discussing the rate of individuals being imprison comparted to community, provided rates for assault which shows crime being maintained and community member feel safe enough to allow for this to
This theory of punishment has an appropriate purpose of corrections which is to prevent crimes but the means of accomplishing this purpose is inappropriate. The primarily used means is incarceration. For instance when an offender is a thief, the hand could be cut and if the offender is a spy, the eyes are gouged out. Such steps are taken in order to maintain security under the incapacitation theory of punishment. However the offenders with quite minor crimes suffer most but they can undertake rehabilitation training courses. After such courses are completed successfully the offenders will be considered to be no longer a danger to other citizens. Incapacitation cannot be counted on as a long-term solution to crime and thus rehabilitation is the best option to crime.
Punishing the unlawful, undesirable and deviant members of society is an aspect of criminal justice that has experienced a variety of transformations throughout history. Although the concept of retribution has remained a constant (the idea that the law breaker must somehow pay his/her debt to society), the methods used to enforce and achieve that retribution has changed a great deal. The growth and development of society, along with an underlying, perpetual fear of crime, are heavily linked to the use of vastly different forms of punishment that have ranged from public executions, forced labor, penal welfare and popular punitivism over the course of only a few hundred years. Crime constructs us as a society whilst society, simultaneously determines what is criminal. Since society is always changing, how we see crime and criminal behavior is changing, thus the way in which we punish those criminal behaviors changes.
The American prison system has long touted the principal of deterrence – meaning that crime can be controlled by giving very harsh sentences to those who are caught, hoping that future crimes will be avoided because a would be perpetrator sees and fears what the potential punishment of following through with such an act might be. The idea that a single person’s punishment is going to keep others from committing a crime a key argument for our system of crime and punishment. This paper is going to focus on this currently failing policy of deterrence, examining its true nature, and then discuss its place, if any, that it has in our law enforcement system.
The Classical School of Criminology generally refers to the work of social contract and utilitarian philosophers Cesare Beccaria and Jeremy Bentham during the enlightenment in the 18th century. The contributions of these philosophers regarding punishment still influence modern corrections today. The Classical School of Criminology advocated for better methods of punishment and the reform of criminal behaviour. The belief was that for a criminal justice system to be effective, punishment must be certain, swift and in proportion to the crime committed. The focus was on the crime itself and not the individual criminal (Cullen & Wilcox, 2010). This essay will look at the key principles of the Classical School of Criminology, in particular
Punishment has been in existence since the early colonial period and has continued throughout history as a method used to deter criminals from committing criminal acts. Philosophers believe that punishment is a necessity in today’s modern society as it is a worldwide response to crime and violence. Friedrich Nietzche’s book “Punishment and Rehabilitation” reiterates that “punishment makes us into who we are; it creates in us a sense of responsibility and the ability to take and release our social obligations” (Blue, Naden, 2001). Immanuel Kant believes that if an individual commits a crime then punishment should be inflicted upon that individual for the crime committed. Cesare Beccaria, also believes that if there is a breach of the law by individuals then that individual should be punished accordingly.