Criminology/How Should We Punish Offenders? term paper 42109

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Criminological debate has propounded polarised theorem as to the most efficacious method to punish offenders within the criminal justice system. Whilst academics agree on the concept of �punishment� as a necessary means they �disagree on the underlying reason that makes punishment appropriate and a justified response to social norm violations� (Carlsmith & Daley., 2002, p.284). However, from a moral perspective, the underlying question regarding punishment is clearly unanimous in asking �what justifies the infliction of punishment on people?� (Carlsmith & Daley., 2002).

One line of argument propounds that the punishment�s primary purpose is to pay back harm caused as retribution for past crimes (Darley, Sanderson & LaMatnia, 1996; Kahneman, Schkade & Sunstein, 1998; Rossi, Waite, Bose & Berk, 1974); others claim that the central purpose is to prevent or reduce future crimes (Jeremy Bentham 1962); thereby implementing two diverging and broad justifications for the use of punishment of offenders.

A common justification for offender punishment is rooted in the just deserts and retribution rationale; focusing on the individual offender whereby the �punishment� element of the sentence is proportionate to the moral wrong committed (Kant, 1952). Under this perspective, the punishment is an end itself and needs no further justification as the offender simply �deserves� the punishment (Kant, 1952). For example, in the late 18th century, Immanuel Kant (1952) argued that �punishment can never be administered merely as a means for promoting another good� and should be �pronounced all over criminals proportionate to their internal wickedness� (p.397).

However, the relationship between law and social behaviour has always posed a difficult balancing act in ensuring notions of justice within an efficient criminal justice framework (Von Hirsch, 1976). Moreover, any social issue inherently proliferates at a staggering rate with any responsive measures implemented formally through sentencing legislation and policy arguably being out of date and inadequate on implementation (Sanders & Young., 2006). This practical limitation in effective implementation of offender punishment highlights the intrinsic difficulty of adequately punishing morality in the criminal justice system, which is further compounded by the complex subjective variants with regard to what should be morally punishable (Sanders & Young., 2006).

Conversely, the competing justification propounded is the deterrence rationale, rooted in the presumption that deterrence reduces the frequency and likelihood of future offences (Nagin, 1998). Deterrence theory further branches out into three limbs; namely socio-economic models and sentencing policy, incapacitation and rehabilitation, which is prospective in attempting to achieve crime reduction by considering the consequences of punishment (Bentham., 1962).

The deterrence theory links to consequential and utilitarian theories often associated with Jeremy Bentham who argued that �general prevention ought to be the chief end of punishment, as it is its real justification� (1962, p.396). As such, the deterrence theory focuses on the punishment of offenders being rooted in the public interest need to reduce crime outside of any considerations of retribution and moral culpability. Moreover, criminological theorem propounds that deterrence operates at various levels; namely individual or specific deterrence; which is focused on socio-political models creating an infrastructure geared towards deterrence.

However, Carlsmith and Darley�s examination of the motivation underlying laypeople�s punishment through three targeted studies demonstrates interesting results. (Carlsmith & Daley., 2002). For example, �Study 1 of their report revealed high sensitivity factors uniquely associated with the just deserts perspective (e.g. offence seriousness, moral trespass) and insensitivity to factors associated with deterrence (e.g. likelihood of detection, offence frequency). Study 2 confirmed the proposed model through structural equation modelling. Study 3 revealed that despite strongly stated preferences for the deterrence theory, individual sentencing decisions seemed driven by just desert concerns� (p.284).

This insight into the psychological aspects of offender punishment highlights the natural predisposition towards retribution, which arguably permeates deterrence theory diluting its primary objective by incorporating elements of �just deserts� (Carlsmith and Daley., 2002). Moreover, the varying results arguably highlight the inherent flaw in polarising deterrence and retribution theories in order to justify an all encompassing and conclusive preposition for how best to punish offenders within the criminal justice system and suggest that an interrelationship between the two should arguably be evaluated in considering how best to punish offenders, particularly in context of causality of criminal behaviour patterns.

The focus of this analysis is to critically evaluate in context of the main competing theories how best the criminal justice system should punish offenders. I will further undertake a comparative analysis and consider whether the development of criminological theory should focus on causality in criminal behaviour and its interrelationship with the central competing justifications in evaluating the most efficient method of punishing offenders within the criminal justice system.

Firstly, deterrence theory is concerned with the consequences of punishment of other�s future actions and the central objective of this �rational choice model� is to reduce further crime and repeat offending by the threat of punishment (Zimming & Hawkins., 1995). As stated above, deterrence theory operates at an individual or specific level which will operate to prevent repeat offending patterns regardless of the retribution theory of proportional punishment to the crime (Bentham 1962).

General deterrence is wider and operates at a political and social level in deterring society as a whole from committing crime (Carlsmith & Daley., 2002). According to this model, over-punishment or exemplary sentencing of one offender is justified as the end means of general deterrence and at the social level, unemployment and other consequences arising as a result of convictions may act as a deterrent to others (Zimring & Hawkins., 1995). As such, the utilitarian theory operates as an underlying facet of general deterrence, as �if the goal is to prevent future crime, then the simplest means to achieve this is to incapacitate those who have trespassed previously� (Carlsmith & Daley., 2002).

The utilitarian theory goes further than mere deterrence and effectively renders it impossible for the offender to re-offend, thereby serving the purpose of general deterrence justifications. However, the efficacy of the utilitarian approach is intrinsically linked to consistent enforcement by judicial authorities, who are given a degree of discretion under sentencing guidelines and practice notes, which have led to discrepancies in practice (Sanders & Young., 2006). The lack of consistency in sentencing offenders in like for like crimes undermines any notion of deterrence and further supports Carlsmith & Daley�s observations that notwithstanding empirical evidence demonstrating a preference towards deterrence theory in offender punishment; the psychology demonstrates that �individual sentencing decisions seemed driven by just desert concerns� (p.284).

Furthermore, whilst the theoretical objectives of deterrence in serving the public interest is clearly meritorious, the dogmatic nature of this model�s operation in practice ignore the wider socio-economic factors involved in shaping criminal behaviour (Sanders and Young., 2006). For example, if we consider the deterrence theory specifically in context of criminological theory pertaining to the relationship between drugs and crime; the utilitarian deterrence theory clearly ignores wider factors at operation in causality of criminal behaviour, particularly in use of poly drugs such as Heroin and Cocaine (Hough et al 2000).

Part of the deterrence rationale is based on creating socio-political models within the societal and legal framework, attempting to deter criminal activity, which is further justified by the central criminological theory that drugs cause crime (Sanders and Young., 2006). However, this ignores the complex machinations of causality in criminal behaviour, particularly if we consider the relationship between drugs and crime by analogy. For example, research suggests that the drugs cause crime model is inherently flawed particularly in relation to the use of poly drugs, which it is argued are linked more broadly with other complex social problems such as poverty, family breakdown and homelessness (Howard League 2000). As such, it has been suggested that:

�There is no persuasive evidence of any causal linkage between drug use and property crime for the vast majority� (Hough et al 2000). As such the government�s focus on heroin and cocaine is flawed� (Hough et al 2000).

Considered further, Bennett (1998) reported on the NEW ADAM development programme, carried out by Cambridge University (1998) in which 879 arrestees were interviewed and urine tested for illicit drug use. Although not intended to operate as a review of the drug-rime relationship in England and Wales, the study resulted in some insightful observations. The results concluded that almost half of all arrestees reported a link between drug use and their criminal activity (Bennett 1998). Holloway & Bennett (2004) further considered the results of subsequent reproductions of this programme and found that in 2001 for example, percentage supporting the link between drug use and criminal activity had risen from 50% in 1998 to 54% (Holloway & Bennett 2004). Additionally, the 2001 survey results demonstrated that 71% of the interviewees had admitted to using heroin and cocaine in the same period as having committed an acquisitive crime (Holloway & Bennett 2004).

The report also found that clients who had entered treatment for Heroin use, and who had failed to resist use, �were ten times more likely to commit other forms of crime, predominantly of an acquisitive nature� (Holloway & Bennett 2004). It has been argued that these findings support a link between drugs and acquisitive crime particularly in context of heroin and cocaine use. As such, the Home Office response was to assert that:

�The links between drug use and crime are clearly established. In fact, around three-quarters of crack and heroin users claim they commit crime to feed their habit. It is our priority to break this damaging claim.� (Home Office, 2006).

However, this �self survey data� has been criticised on grounds of questionable reliability of offender responses (Gould 1974) linking to the problematic nature of the �motivated interviewee�. For example, Gould comments that offenders often exaggerate the seriousness of their drug dependency, which is motivated by variable factors. Conversely, some samples may downplay their problem whilst undergoing treatment. Accordingly, �the reality of the extent of drug use and the subsequent acquisitive crime cannot be easily identified via self-survey� (Walton 2007).

Therefore, it has been propounded that the actual extent of the drug link to crime may be unrealistic (Walton 20070. Moreover, the Home Office�s use of statistical data to justify its policy decisions regarding drug related response arguably supports the economic compulsive theory by implication as the explanation for the correlation between drugs and crime. Fowler comments on the Home Office approach and asserts that �There is now a common assumption that problematic drug misuse is at the root of much crime� (Fowler, 2003: 31).

However, other commentators argue that this �assumption� is inherently flawed, as other empirical research clearly demonstrates that illicit drug use is linked other forms of crime and that as such, the connection between the multifarious factors are complex, which undermines the veracity of Fowler�s statement. If this is considered by analogy, it would suggest that the deterrence theory is inherently flawed in ignoring the complexities of causality in criminal behaviour.

For example, Auld (1986) argued that mass unemployment and low state benefits left a disaffected youth unable to satisfy their basic humanitarian needs, thereby creating an environment ripe for petty crime to secure �necessary funds� (Auld 1986). As such, it was this environment which led to direct with the machinations of the drug market, which would exist irrespective of any general model of deterrence intended to eradicate or reduce crime per se, which in turn is the central justification propounded for a penal system based on the deterrence theory.

For example, Burr (1987) argued that in the South London area that was the focus of her study, it was the existing crime culture dominating the local populace which predisposed a vulnerable youth to heroin use in particular to finance their habits. This pre-existence of established networks for �fencing stolen goods� led to increased heroin addiction and as such, �the deviant value system made thieving acceptable behaviour and �.use of heroin was an extension rather than a cause of their delinquent behaviour� (1987 Burr, p.350).

These two differing criminological models provide �corrective viewpoints to conventional view of drug addiction causing crime� (Seddon 2000). Auld et al. focus on the importance of appreciating the socio-economic context whilst Burr focuses on �socio-cultural and sub-cultural� elements (Seddon 2000). Their differing strengths are rooted in adopting a contextual approach which �eschews medical or monocausal explanations� (Seddon 2000). However, it is commented that they are not without their limitations.

Firstly, as discussed above there is evidence that a significant proportion of offenders are not actually involved in crime prior to drug use (Parker and Newcombe 1987, Bean and Wilkinson 1988) which is not accounted for in either Auld or Burr�s assertions. However, this criticism in itself is arguably flawed as the majority of studies rely on conviction records �which only pick up a fraction of actual offences it is difficult to assess the size of this group� (Hammersley 1989 p1032). Secondly, it has been commented that not all individuals living in the socio-economic environment reported by Auld and Burr necessarily become involved in drug abuse and crime and as such, the actual process by which these socio-economic factors explain the drug crime link remains unclear.

As such, this arguably lends itself to the �just desert� theory justification for offender punishment in considering moral culpability and implementing a punishment to �fit� the crime. However, as evidenced by the discussion below, the retribution theory is not without its limitations.

Nevertheless, it is impossible to ignore the fact that both models are linked to the �method in which causality is conceptualised� (Seddon 2000). As such, �the mechanical nature of their analyses highlights the need for a better understanding of causality� (Seddon 2000) which highlights the inherent flaw of the deterrence model (Rossi, Berk & Campbell., 1997, & Rossi, Waite, Bose, & Berk., 1974). Moreover, deterrence initiatives implemented in the criminal justice system are clearly inefficient if they fail to take account of the socio-economic factors underlying causality in criminal behaviour. Simultaneously, it is further arguable that retributive punishment of offenders can only be effective if intrinsically linked with considerations of causality (Tyler., 1990).

Moreover, Walker�s assertions that �naïve beliefs both in the effectiveness and the ineffectiveness of a policy of deterrence have been replaced by the less exciting realisation that some people can be deterred in some situations from some types of conduct by some degree of likelihood that they will be penalised in some ways; but that we do not yet know enough to enable us to be very specific about people, the situations, the conduct, or the likelihood or nature of the penalties� (N. Walker., 1985) further highlight the need to evaluate the interrelationship with causation and socio-economic factors in order to consider how best to punish offenders.

Andenaes further argues that the efficacy of deterrence can be improved by increasing the severity of the sentencing and states that �contemporary dictatorships display with almost frightening clarity the conformity that can be produced by a ruthlessly severe justice system� (1996). These anti-deterrent effects of punishment are further referred to as labelling effects (Andenaes., 1996) . However, labelling theory in criminology argues that catching and punishing offenders labels and stigmatises them as criminals which in itself renders law abiding behaviour difficult due to the social labelling and lack of acceptance. This in turn highlights the need to consider the complex machinations of causality in criminal behaviour as part of the continued development of the deterrence theory in the punishment of offenders.

Moreover, the severity of punishment model ignores the possibility that removal of one problem could be replaced with another type of crime, which is further supported by observations of incapacitation (Carlsmith & Darley., 2002). For example, in the case of Sargent (1975), Lawton LJ commented that there are �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�.

Indeed, Lawton LJ�s comments highlights the flaws of both theories being completely effective as a method of offender punishment and suggests that incapacitation best serves the public needs in ensuring justice in the criminal justice system. However, this again is inherently linked to consistent enforcement at judicial level in sentencing. As such, it is submitted that any system of offender punishment must implement procedural safeguards to ensure consistent enforcement and equality of arms before the criminal justice system irrespective of the criminological model used in practice.

Alternatively, rehabilitation is the final limb of the prospective theories for offender punishment, and it is argued to be the most ambitious development of the penal theory (Andenaes., 1996)). The ultimate goal of rehabilitation is to achieve conformity through positive change and motivation as opposed to through fear created by the imposition of severe deterrence models (Andenaes, 1996). Whilst empirical evidence remains inconclusive as to the efficacy of this, it is intrinsically going to suffer the same problems of motivational interviewing, further compounded by the inherent complexities of social background and causality in criminal behaviour.

For example, if we again consider the drugs and crime relationship analogy, the link between increased levels of drug use and crime could be attributed to the fact that �success� in crime execution provides necessary monies to fund the drug use. These parallels between developments of �drug careers� might actually suggest that both are in fact �symptoms of broader delinquent behaviour which is cause by other factors (such as family and employment)� (Seddon 2000). On this premise, Seddon argues that it is necessary to further develop the causal links between drugs and crime to �move beyond generating new but unproven hypotheses� (Seddon 2000).

This proposition further highlights the flaws in the retribution theory and suggests that notions of morality may be limited in covering the broad range of triggers which contribute to criminal behaviour. This further highlights the need to consider the factors highlighted by Seddon at the stage of sentencing in order to consider the best way to punish offenders going forward.

Alternatively, the retribution theory covers four further categories; namely vengeance, expiation, censure/denunciation and just deserts (Carlsmith & Darley., 2002). The latter is the most commonly accepted within the retribution model. Vengeance ultimately seeks suffering in order to exact revenge and operates at two levels. Firstly, from the perspective of satisfying the victim�s need for vengeance, which is sanctioned at state level.

The second element of vengeance propounded is the public desire for vengeance based on human instinct. However, this has been criticised by scholars as representing �the breakdown of human intelligence, as well as good will. It shows perhaps the ugliest phase of our human nature� (Von Hirsch., 1976). Yet if this is considered in context of Carlsmith and Darley�s studies (2002), surely the psychological motivations of the judiciary in sentencing are subliminally shaped by elements of �vengeance� in delivering justice? This further highlights the point that consideration of the best method of punishment of offenders must be evaluated in conjunction with the role of the judiciary in enforcement.

Expiation is the process of paying the debt owed to society created by the commission of the crime whereby the offender can reconcile their crime with society by wiping the slate clean (Carlsmith & Darley., 2002). However, this is not without limitation as the effectiveness of such a punishment is clearly dependent on the will of the offender to work off their guilt (Carlsmith & Darley., 2002).

The third aspect of the retribution theory is of censure or denunciation, where the aim is to achieve public condemnation of a crime (Carlsmith & Darley., 2002). For example, in the Yorkshire Ripper case, the defendant had pleaded guilty for manslaughter, yet what followed was a costly and lengthy trial for murder on moral grounds. Nevertheless, Lord Hewart asserted that �Justice has not to be seen to be done, but manifestly and undoubtedly be seen to be done� (Sanders and Young., 2006).

However, it is this very concept of �justice� propounded as a cornerstone of the retribution theory that has faced direct legal challenge by virtue of the implementation of the European Convention of Human Rights (ECHR) into UK law by the Human Rights Act 1998 (HRA). Indeed, the recent high profile case of Josef Fritzl in Austria created legal debate whereby Fritzl�s lawyers argued that the intense media coverage prejudiced his right to a fair trial as enshrined under the ECHR. Yet in light of the fact that he has confessed to and is guilty of the crime, it has created debate as to whether Fritzl should even have the right to a fair trial.

However, the debate itself further demonstrates how the practical implementation of the retribution theory is inherently limited by ad hoc subjective judicial determinations of morality. Moreover, from the implementation of the ECHR further shapes the penal system�s view of �moral culpability� within the confines of enshrined ECHR rights.

With regard to the just deserts theory, this principle was clearly extrapolated by Andrew Von Hirsch, who asserted that �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� (1976).

This assertion is primarily rooted in Kant�s work on autonomy, asserting that individuals owed duties to others not to violate their rights and compliance with the principle of natural justice that law sacrifices a part of everyone�s freedom (Kant 1952). As such, the purpose of punishment is to remove an unjustly gained advantage from offenders. Moreover, the deterrence theory is rejected whereby punishment must fit the individual crime.

It is argued that this theory works towards providing a fair justice system by distributive justice in punishing individuals to the extent of the advantage that they gained (Von Hirsch, 1976). However, this theoretical ideal is inherently flawed as notions of �deserves� and fits the crime is subjective and therefore left to judiciary discretion to determine what fits, which again undermines the concept of retribution in its theoretical sense. Moreover, Von Hirsch highlights these flaws by asserting that �A person who violates the rules has something others have � the benefits of the system [of mutual non-interference with other�s 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� (1976).

However, the issue of what constitutes a benefit and unfair advantage remains uncertain (Sanders and Young 2006). For example, cases involving the defence of provocation in domestic violence cases and the battered wife syndrome acknowledged in the Alhuwalia case (1992) clearly highlight that there was no advantage gained by the victim�s killing of their husband. Therefore, there is clearly inconsistency within the criminal justice system if crimes where no advantage is being gained are �punished� under like for like sentencing on grounds of retribution (Sanders and Young 2006).

Moreover, the proportionality aspect of the just desert theory sits uneasily with the notion of extreme punishment and deterrence. Indeed, Ewing argued that �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� (1946).

Just deserts takes out individualised sentencing, which is viewed as necessary in achieving fair results. However, the discrepancies in sentencing at judicial level beg the question whether retributive theory based on discretionary implementation can ever achieve completely fair results (Sanders and Young, 2006).

Accordingly, whilst the theoretical justifications of both deterrence and retribution models are clearly meritorious, the above analysis demonstrates that neither is entirely satisfactory as an all encompassing method of offender punishment. On the one hand, whilst the severe punishment infrastructure of politically shaped deterrence models clearly represent the public interest in tackling crime, the evidence that such models are effective as deterrent measures remain inconclusive.

Moreover, the deterrence theory models are clearly dogmatic in ignoring the interrelationship between causality in criminal behaviour and it is submitted that this should form the focus of future criminological development of the deterrence theory in context of offender punishment. It is further submitted that until the interrelationship between causality and deterrence is evaluated further, any such general deterrence theory model based on social factors is inherently limited in efficacy.

Similarly, causality in criminal conduct is an essential element in effective offender punishment under the retribution theory, which is further highlighted by Carlsmith and Daley�s studies of the psychology of punishment. If mitigating and aggravating factors are taken into account in considerations of moral culpability under the retribution theory, it necessarily requires a consideration of the interrelationship between background causality and crime commission.

Furthermore, whilst the theoretical ideal of fairness under retribution theory is sound, the practical reality undermines this ideal as cannot be fair due to the uncertainty in justifying the parameters of what constitutes an unfair advantage. Moreover, the inconsistency in sentencing and ad hoc judicial subjective determinations of morality further undermines fairness of retribution theory, which conflicts with equality and justice. Herein lies the fundamental problem of offender punishment under both models. The effective punishment of offenders is inherently linked to consistent and effective enforcement. Accordingly, it is submitted that whilst essential that interrelationship between two theorems and how can work in conjunction with a consideration of causality of crime model, it is submitted that the implementation of this needs to consider safeguard mechanisms and enforceable guidelines at judicial level to ensure that theory is implemented consistently in effective offender punishment.


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