Sentencing rationales - Term Paper Example

An offender violates his obligation to society to obey societal norms, and this justifies the deprivation of the offenders civil rights. This deprivation is aimed at denying the offender the opportunity to obtain any further unfair advantage and disadvantage the law abiding members of the society. Punishment is also necessary because all members of a society receive benefits as long as they agree to live within the law. Offenders impose on other members of the society and cause them a disadvantage.

This disadvantage is an extras benefit that is not available to the law-abiding members. Sentencing is, therefore, intended to offset this unfair advantage obtained and restore the society to its equilibrium (Hofer and Mark 19). Literature research When sentencing it is imperative that the punishment must be proportionate to the disadvantage caused in order to correctly regain equilibrium. Although punishment can be justifiable, the justifications of sentencing do not provide a clear guideline on the appropriate punishment for particular cases.

The justifications do not set out the rights that an offender should forfeit for violating certain norms and what punishment will eliminate the unfair advantage caused by the offense. If punishment is to restore the equilibrium disturbed, then it is imperative that the punishment must be proportionate to the offense. Therefore, the guiding principle in determining the severity of the punishment must be in proportion to the seriousness of the crime. This then implies a hierarchy of sentences and offences and sets the principle that similar offenses must attract similar sentences.

This view applies concepts of common-sense and equity which dictate that serious crimes must attract more severe sentences than less serious offenses (Henham 69). The retributivists approach to the concept of punishment argues that punishment is and must be justifiable for its purposes while the utilitarians, assert that punishment is and can be justifiable for some ulterior consequence or benefit, for example, social good. Retributivism approach can be either positive or negative. Positive retributivism believes that sentencing is a sufficient and necessary precondition while the negative retributivism regards punishment as a necessary precondition.

Utilitarians, on the other hand, have several varieties. There are different theories on how crime should be prevented. Rehabilitation checks crime by treating the offender of the abnormal criminal tendency for the sake of both the offender and that of the society (Henham 770). Incapacitating the offender prevents the offender from committing the offense by making it impossible for the offender to act on his or her tendencies. This perspective requires the law to intervene immediately an individual poses a threat to the society to an extent requiring sanctions to prevent the offender from accruing unfair advantage.

This approach supports intervention even before the commission of an offense, and punishes attempts that might not have succeeded. It is also noteworthy that the incapacitation will perceive no rational to punish fruitless attempts any less severely than successful ones. This position assumes that the degree at which offenders fail to consummate offenses implies that these offenders are less dangerous but these individuals have manifested criminal tendencies