Severity of Sanctions and Its Implications on Deterring Criminal Behaviour - Essay Example

RUNNING HEAD: SEVERITY OF SECTIONS AND DETERRENCE Severity of Sanctions and its Implications on Deterring Criminal Behaviour Name School Date Severity of Sanctions and its Implications on Deterring Criminal Behaviour Mankind, since the dawn of recorded history, has struggled with the philosophical implications of crime and punishment. Behind every criminal justice system, regardless of the cultural or political status of the state, there has been the evolving controversy between retribution and the utilitarian models of punishment. The divergence of the two lies in how a given society answers two basic questions; "Whom do we punish and what should the punishment be" (Palmer 2005, p. 25) Broadly defined, the utilitarian approach seeks to reduce crime whilst the retributive model seeks to punish the criminal in a manner befitting the crime. The implications of these two philosophies are quite different. Retribution focuses on the criminal's behaviour and stresses the need to punish him in proportion to the extent of damages caused or loss suffered. Conversely, the utilitarian stance focuses, not on the criminal, but on society as a whole with an aim at reducing crime and thereby ensuring the safety of society. Whilst both of these models are described in their pure theoretical form, in reality most cultures adopt a blended version of both. However, before we begin to fully examine the effectiveness of deterrence, an understanding of it is necessary. There are two types of deterrence: general and specific. Specific deterrence is aimed at eliminating the future criminal activity of the person being incarcerated or punished in order to avoid future punishment for repeating a similar crime whilst general deterrence's goal is reducing crime unilaterally by stopping others from committing like crimes for fear of receiving like punishment (Palmer 2005, p. 25). While it is impossible to argue that capital punishment is not a totally effective means of ensuring specific deterrence, its effectiveness as a deterrent to others is not so definitive. This leads us to the debate of the severity of sentencing and its effects on deterring criminal behaviour. Feinberg views punishment in general as retributive in nature. Instead of acting as a deterrent to preventing future criminal activity sentencing is merely a punishment and has nothing to do with deterring crime; rather its effectiveness as a specific deterrent only lasts as long as the prison sentence itself. In his explanation of the phenomenon of punishment Feinberg states: Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority himself or of those 'in whose name' the punishment is inflicted. Punishment, in short, has a symbolic significance largely missing from other kinds of penalties (1994, p. 74). He elaborates in greater detail by stating that greater than disapproval, punishment is, in effect, society's method of 'getting back' at criminals and further showing its "vindictive resentment" (1994, p. 76). From his position it is clear that criminal sentencing is not deterrent in intent; rather it is retributive in nature. Von Hirsh and Ashworth take a similar stance but further elaborate on what they view to be the causal effects of this 'vindictive resentment'. In their theory politicians use the public's fear of crime and criminals to create a heightened state of panic amongst the public. With this increased sense of fear and outrage the brunt of the retributive wrath falls upon those least able to defend themselves. Clearly seeking neither retribution nor deterrence, the political overtones and the media frenzy caused results in a public outcry for justice. As public sentiment grows more fearful and resentful, the severity of punishment rises proportionally. The sentence no longer deals with the specific nature or severity crime itself, but rather focuses on punishing the criminal. Von Hirsh and Ashworth assert that this has a more damaging affect on society as the actual perceptions of crime and criminality become warped. It becomes cyclic in nature; as public outrage increases, politicians call for stricter sentences. This cycle leads to a 'purge mentality' whereby society tries to rid itself of those it deems unfit. This 'cleansing' of society or purging as Von Hirsh and Ashworth term it leads to severe sanctions. Even more unfortunate, as stated earlier, those with the least amount of 'political clout' tend to be affected the most, typically the poor and minorities (2000). This purging can be best seen in such legislation as the 'three strike rule' in the United States where a third offence results in a mandatory sentencing length which is severe in length and is imposed regardless of the extent of damage or harm caused by the crime. Another example of this increased severity of sanctions was introduced in the 1980's by the term 'just deserts'. Replacing indeterminate sentencing which was viewed as giving too much discretionary power to the judiciary, determinant sentencing or tariff sentencing deals not with the future potential for criminal behaviour by a criminal; rather, his past offences determine his future sentencing. In 1976 Zimring stated that tariff sentencing allowed politicians to raise the tariffs based on the public perception or media hype to "get tough on crime" when as shown earlier it is the politicians themselves who often create the hysteria (243). In 1994, Zimring further made the point the 'just desert' or tariff sentencing does not even account for the fact that there is a multitude of discretionary avenues open in the sentencing of a criminal. The legislative branch makes the laws; prosecutors determine the charges to prosecute; judges sentence; and sentences can be further reduced or lengthened in prison. (164) Politics is responsible for longer sentencing not deterrence. In defending the rights of those affected by the 'purge mentality', although making this claim prior to the identification of the label by Von Hirsh and Ashworth, Dworkin in 1985 stated that it is the duty of a just society and therefore its government to treat equally all citizens with dignity, respect and concern (190). Further he elaborates that it is further the duty of government to ensure that equal treatment is not independent of nor dependent on any factor such as economic or social status; rather treating each citizen as an equal results in following the golden rule - treating another as you would like to be treated, with dignity and respect (191). In an attempt to avoid the moral and ethical implications of long prison sentences or imposition of the death penalty many criminologists have used empirical methods in an attempt to defend their positions. In 2004, Narayan and Smyth, two economists, in an attempt to once and for all end the contentious debate over the deterrent affect of capital punishment conducted an extensive study utilising the bounds testing approach to co-integration with an error correcting framework. This highly detailed statistical analysis drew data from 1965 through 2001. After analysis the data, the researchers concluded "for the first time we provide estimates of the long-run and short-run elasticities of the murder supply equation. Secondly, we use post moratorium data where there has been a general dearth of recent evidence on the deterrent effect" (pp 20-21). Their finds, however, were not conclusive. Referring to prior research by other economists who utilized other methods of statistical analysis the researches found "while they find strong support for the deterrence hypothesis, we find at best, mixed support" (Narayan and Smyth 2004, p. 22). In their hypothesis Gendreau, Goggin, and Cullen asserted that the length of prison sentences would have an influence on the deterrence of criminals. However, the results of their study only yielded a weak positive relationship between sentence length and probability of recidivism. Likewise, psychologist Nigel Walker found through his research that in the moments before committing a crime, the criminal is "not in a deterrable state of mind" (1991, p.14). Further, he asserted that even though many criminologist feel that sentencing does deter criminals it is almost impossible to show a relationship between the length of sentence and its deterrent effect (1991, p 15). For that very reason Walker asserts that, as it can not be shown to have any deterrent benefit, sentencing criminals to long prison terms or to death only inflicts further suffering and is, therefore, morally wrong (1991, p.13). One further piece of evidence is presented as demonstrated in the graph below. As seen in figure 1, the United States which employs the death penalty during the years 1997 to 1999 had a homicide rate of 6.26 people per 100,000 while Britain had a homicide rate of 1.45 per 100,000. Likewise the other five European countries displayed on the graph have significantly lower homicide rates and in none of them is the death penalty legal. These statistics do not support the deterrent effect of capital punishment. Table 1: Comparison of Murder Rates US versus Europe 1997 - 1999 ("Death penalty 2006, screen 1) Even with the advanced statistical analysis methodology employed by economists, there seems to be no definitive proof to support or disprove the effectiveness of capital punishment as a deterrent. However, what has been shown is that prior analysis showing a causal relationship is, at best flawed. The length, breadth and longevity of this debate seems to be, at least in part, an attempt by that portion of society who defends the death penalty and long term prison sentences to assuage their collective conscious. Having the ability to prove to the world that the death penalty and other sever sanctions do deter crime would still the moral implications and justify the retributive nature of mankind. However, until that can be accomplished the debate will continue. References Dworkin, R. (1985). A matter of principle. Cambridge, MA: Harvard Univ. Press. Feinberg, J. (1994). "The expressive function of punishment." pp. 71-91 in A reader on punishment, ed. by Antony Duff and David Garland. Oxford: Oxford University Press. Gendreau, P., Goggin, C. and Cullen, F. T. (1999). The Effects of Prison Sentences on Recidivism. Report to the Corrections Research and Development and Aboriginal Policy Branch. Ottawa: Solicitor General of Canada. "Murders in Europe and the US." (2006). Death Penalty Information Centre Website. Retrieved 2 Feb. 2006, from http://www.deathpenaltyinfo.org/article.phpscid=12&did=167#Deaths%20of%20Children%20in%20the%20U.S.:%20New%20Report Narayan, P. K. and Smyth, R. (Apr. 2004). "Dead men walking: an empirical reassessment of the deterrent effect of capital punishment using bounds testing approach to co-integration." American Law and Economics Association Annual Meetings. American Law and Economics Association 14th Annual Meeting, Working Paper 26. Retrieved 3 Feb. 2006, from http://law.bepress.com/alea/14th/art26/ Palmer, S. (2005). "Law-and-order sentencing: political practice in search of rationale." LBJ Journal of Public Affairs, 17, pp. 24-33. Von Hirsch, A. and Ashworth, A. (2000). "Law and order." In Principled sentencing: readings on theory and policy, (2nd ed.). ed. Andrew Von Hirsch and Andrew Ashworth. Oxford: Hart Publishing. Walker, N. (1991). Why punish theories of punishment reassessed. Oxford: Oxford University Press. Zimring, F. (1976). "Punishing homicide in Philadelphia: perspectives on the death penalty." University of Chicago Law Review, 43:2, pp. 227-252. Zimring, F. (1994). "Making the punishment fit the crime: a consumer's guide to sentencing reform." pp. 161-173 in A Reader onPunishment, edited by Antony Duff and David Garland. Oxford: Oxford University Press. Read More