Theories of Punishment: Determining Conviction and Sentencing - Literature review Example

Determining Conviction and Sentencing Introduction: Criminal law as currently practiced, is centered around the administration of punishment to the offenders, for purposes of retribution for their actions and to function as an effective deterrent to others from committing similar crimes. One of the difficulties in effectively applying punishment to solve the problem of crime is that punishment serves multiple goals. As a result, the desired goal of the punishment is often unclear. Is it intended to serve as a retribution for a crime, or to render the criminal incapable of further criminal acts or a deterrent to criminals, or as a means to rehabilitate the criminal or to restore the damage caused by the offence?1 Any punishment, if it is to be effective, must fit the crime and achieve the objective of preventing the recurrence of such criminal acts, but this is never an easy goal to achieve. Theories of punishment: According to Caesare Beccaria’s scientific theory of crime, criminals are viewed as rational individuals who wish to maximize their pleasure and minimize their pain and this process may lead them to commit crime; therefore the objective of punishment under this view is to function as a deterrent, both to the criminal and others.2 In Beccaria’s view, punishment to be effective, must not be determined by judges but set by the State, it must be proportionate to the crime and it must be swift and certain.3 In arriving at a determination of whether a criminal act deserving of punishment has occurred, it is necessary to gauge the criminal actus reus and mens rea. While the former refers to the act itself, the latter requires that the criminal should have had the intent to commit the crime, or that he did it intentionally. This helps to determine to what extent the individual should be held guilty of committing a criminal offence. In actual practice, it may often be difficult to apply Beccaria’s recipe for punishment, because it is sometimes difficult to hold a person responsible for committing the crime when circumstances in the environment may have led him to commit the crime without the act being perpetrated of his own free will. When an individual commits a crime, but the required mens rea for the crime cannot be effectively established, it raises the question of the extent to which the individual can be punished for the crime. For instance, the Rational Choice Theory points out that crime may result when ordinary people are exposed to “specific opportunities and situational inducements.”4 The Routine Activities Theory holds that it is the absence of a capable guardian and strong peer influences which may motivate crime among young people.5 Under such circumstances, it may not be just to lay the entire blame and punishment for the criminal act at the door of the defendant/s when the causal factors for the act could have arisen in the environment. When the defendant suffers from mental disorders that create a lack of awareness of the consequences of criminal actions, the establishment of mens rea which is so important in fixing criminal liability becomes difficult. Applying a harsh criminal sentence under such circumstances then becomes questionable in achieving justice. The question of mental capacity was raised in People v Strong6 where the issue was whether the trial Court should have submitted for the consideration of the jury, a lesser crime, bearing in view the mental incapacity and deficiencies of the defendant that arose due to his abnormal beliefs. The argument was that the defendant “failed to perceive the risk inherent in his actions”.7 In this case, the Court clarified that when an offender is aware of the risk of injury or death that could result and chooses to ignore it, then he is criminally liable. When an individual is not fully aware of the consequences of his actions, due to diminished or otherwise abnormal mental capacity, then his actions may not deserve the same level of punishment. In the case of USA v Michael Anthony Sheehan8 the defendant argued that his reduced mental capacity due to acquired brain injury, seizure and mood disorders made him eligible for a reduced sentence. In the People v Strong case, the Court held that in view of the circumstances of the case, a lesser sentencing option should have been offered to the jury. These cases raise the issue of extent of criminal liability to be taken into consideration in administering of punishment. To what extent should the offender be held responsible for his actions when there are factors in the environment that may have contributed to his criminal action, as opposed to the deliberate result of his rational mind, which provides the mens rea for a crime? When mens rea cannot be definitely established, or when there are supplementary factors in the environment that have contributed to the criminal activity, it can be argued that laying the entire liability for the crime on the offender may not serve the cause of justice. There are many reasons that could motivate an individual to commit a crime and not all of them may merit the sentencing proportional to the crime, which could reduce the actual culpability of the offender and merit a reduced sentence or punishment. For example, the case of The Queen v Dudley and Stevens9 a young boy was killed as an act of necessity under extraordinary circumstances. The issue raised in this case was whether necessity could produce a reduced sentence for murder? While acknowledging the extraordinary and painful circumstances of the case, the Court nevertheless held it to be an act of murder. But it was pointed out in this case that there may be instances where an individual is in grave danger; “if he cannot otherwise save his own life, the law permits him in his own defense to kill the assailant…”10 Self defense could thus be one such grounds which merits a reduced sentence, because factors in the environment many have contributed to a grave threat to the offender’s life which left no recourse but to commit an act of murder in self defense. Necessity however, has been held to be a valid grounds as a defense leading to reduced sentencing, such as for example in the case of People v Lovercamp.11 In this case the defense was applicable because the defendants escaped from prison to avoid sexual assault but they surrendered immediately afterwards to the authorities. Another such example is the case of a criminal act being perpetrated in order to achieve a result that contributes to the greater good. The utilitarian view would hold that when certain illegal actions are committed to achieve a greater good, then there arises a case for withholding punishment.12 “ [If] one who is confronted with a choice of evils makes the ‘right’ choice and that choice involves conduct that would violate some criminal law, he is excused from that violation.”13 This principle is also laid out under Section 3.02 of the Moral Penal Code, wherein certain criminal actions may be justified if the evil they seek to prevent is greater than the inherent evil of the criminal act itself. On the basis of the above, it must also be noted that on an overall basis, when a criminal act has been perpetrated, the punishment must follow. But when there are extenuating or mitigating factors in the environment which have contributed to the crime, then reduced sentencing may be considered. The question of justice is very important in this aspect, because unless a criminal act is duly punished, it would open the floodgates for other individuals to commit crimes, citing all manner of factors to excuse those crimes. Even in those instances where necessity or a criminal act in self defense may be grounds that are acceptable as a defense, the individual cannot be allowed to go off scot free. If some individuals are able to escape punishment for a criminal act, it would raise the negative overall result of acceleration of crime rather than achieving the goals of crime prevention. While certain circumstances undeniably merit a reduced sentence, complete elimination of punishment may be relevant only in truly exceptional and rare circumstances. It is the establishment of a uniform code that a criminal action will be unfailingly punished, which preserves law and order in society. While reduction of sentence in consideration of mitigating factors in the environment may be acceptable and punishment may be tailored to the severity of the crime, the fact that the person has committed the criminal act means that s/he must be held responsible for it. Punishment needs to be administered, in one form or the other. An individual must therefore be held to be responsible for his actions. The choice to engage in a criminal action under the circumstances, whatever they may be, in effect mean that an individual has accepted the risks and negative outcomes attendant with it. Only when mens rea cannot be established due to the severe mental incapacity of a defendant, would it be reasonable to hold that the individual is not responsible for his/her actions. While reduced sentencing takes into account the extenuating circumstances that may have led an individual to commit a criminal act, it does not withhold punishment altogether. In the case of a mentally incompetent person, the individual is generally sent to a hospital to receive treatment, however this may also be attendant with some level of punishment, such as incarceration in a mental care facility. The very notion that crime must be punished through traditional sentencing methods is questioned under the concept of restorative justice, according to which the “right punishment of the wrongdoer is rarely going to be the best solution to the problem…”14 or be an effective aid in bringing about crime prevention. Under the principles of restorative justice, traditional punishments for crime are questioned on the basis that they contribute to the “disempowerment that victims feel, first at the hands of offenders and then at the hands of a professional remote justice system that eschews their participation.”15 Restorative Justice offers excellent potential for truly addressing the ramifications of crime and achieving crime prevention. In this instance, the sentencing does not conform to the traditional format of imprisonment or death, rather the offending individual is made to engage in acts that can effectively compensate as far as possible for the losses suffered by the victims. This allows the victims also to participate effectively in the criminal justice process, while also enabling offending individuals to be rehabilitated into society. Such sentencing may be particularly beneficial in the case of young people who have been subjected to negative peer influences, leading to the committing of criminal acts. Restorative justice allows them to experience the negative impact of their actions and the extent of harm and pain it causes to the victims and allows them to make some efforts towards reducing the harm that has been caused through some fork of service. Restorative justice may therefore be more effective in the long run as compared to traditional sentencing methods in some instances, especially in achieving crime prevention. The nature of the sentencing must take into account the severity of the crime, but the extent of responsibility that is to be attributed to the offender must also take into consideration the circumstances surrounding the criminal act. While an individual cannot be completely absolved of responsibility for a crime, unless s/he is suffering from a very severe and incapacitating mental disorder, reduced sentencing is acceptable when it is in proportion to the severity of the crime. Bibliography Clarke, R & Mayhew, P, 1980. “Designing out crime”, HMSO: London Cohen, L. & Felson, M., 1979. ”Social Inequality and Predatory Criminal Victimization: An Exposition and Test of a Formal Theory”, American Sociological Review, 44:588-608. Cullen, Francis T and Agnew, Robert. “Criminological Theory: Past to present. Essential readings” (3rd ed) New York, Oxford: Oxford University Press Skolnick, Jerome H, Feeley, Malcolm M and McCoy, Candace, 2005. “Criminal Justice: Introductory cases and materials”, (6th ed), New York: Foundation Press, Cases cited: People v Lovercamp (1974) 43 C 3d 823, 118 CR 208 People v Strong (1975) 37 NY 2d 568 The Queen v Dudley and Stephens (1884) 14 QBD 273 USA v Michael Anthony Sheehan (2004) Case no: 03-4239, United States Court of Appeals for the Tenth Circuit; Available online at: http://laws.lp.findlaw.com/getcase/10th/case/034239.html; accessed May 14, 2008 Read More