Sentencing Strategies - Assignment Example

Sentencing Strategies Sentencing refers to the final process of a court process, which involves the final ruling of the judge, based on the evidence provided in court of the Jury’s verdict (Davies, Croall, & Tyrer, 2005, pp. 23). A sentence includes a decree of a punishment that an offender receives for committing a crime if found guilty. Punishments or sentences vary from case to case and may include imprisonment, fine, community service or any other form of punishment that is legally acceptable (Davies, Croall, & Tyrer, 2005, pp. 24). There are different rationales or philosophies that judges can use to give their sentences to criminals. The two main strategies or rationales for sentencing are offender instrumental strategies and moral censure strategies. Offender instrumental strategies focus on the offender and the crime in question. This rational provides for punishment that is meant ensuring justice on the part of the criminal and the victims of the crime. The main theories for offender- instituted sentencing include retributive theory, deterrence theory, and incapacitation theory (Davies, Croall, & Tyrer, 2005, pp. 31). Moral censure strategies for sentencing look at the moral aspect of a crime and aim at enforcing morality in the society. Morality Censure strategies include rehabilitation, reparation, and denunciation. As a judge, I would give priority to offender-driven sentences at the expense of morality censure strategies for sentencing. This is because legal structures such as the judicial system are established on the basis of law and all their processes must be in accordance with the legal framework in place. The question or morality lies without the confines of the law, and in as much as morality helps to prevent crimes; it is not the role of the judiciary to enforce morality. The primary objective of courts is to enforce the law. Punishment is a concept of justice that ensures criminals get what they deserve from their criminal acts. Punishments are provided for in law and there are many different punishment oriented strategies that have been effective over the years and still continue to play a major role in cubing crime. There are different theories that explain the offender- instrumental strategies for sentencing. These theories include retributive theory, deterrence theory, and incapacitation theory. Despite addressing the same issue of crime through punishment, these theories use different approaches to arrive at the same objective. The retributive theory, for instance, advocates for punishment as the best response to crime. The theory stipulates that punishment has to be proportionate to the type of crime committed in order for it to ensure justice prevails. The theory is based on a principle that when one breaks the law, they ought to forfeit something in return to pay for the law broken. Retribution should, however, be distinguished from revenge or vengeance. Unlike vengeance, retribution is not personal; it has its limits and procedural standards, and does not derive pleasure from the suffering of others (Davies, Croall, & Tyrer, 2005, pp. 51). Any form of punishment for a wrongdoing must be reasonable and equal to the crime committed. Retribution is one of the oldest concepts in law that dates back to the ancient Roman Jewish cultures, commonly known as ‘an eye for an eye and tooth for tooth’ rule (Ashworth and M. Redmayne, 2010, pp. 39). The element of proportionality in retributive justice requires scaling down punishments in relation to severity of a crime. Proportionality does not however imply that punishment out to be equivalent to crimes, but requires that severe crimes be punished more severely while minor crimes receive a less harsh punishment (Ashworth and M. Redmayne, 2010, pp. 53). Retribution is very different in relation to other theories of offender driven sentencing. While the other theories focus on preventing crimes, retribution focuses on responding to crimes. In practice, retribution implies that sentencing takes in to account the severity of crimes committed by an offender. Offenders who commit serious crimes receive harsh punishments as compared to those who commit minor crimes. Retribution ensures that one does not receive punishment that is heavier in relation to the offence, or that a serious offender does not escape with a less serious punishment (Ashworth and Redmayne, 2010, pp. 86). Retribution also implies that existing legal structures and judicial systems take in to account severity of crimes when forming the penal code system to prescribe punishments for crimes. Retribution also implies that criminals or offenders who commit similar offences will receive similar punishments. The other theory for punishment is the deterrence theory. This theory advocates for the use of punishment as a threat for preventing other people from committing crimes. Deterrence has to main assumptions. The first assumption is that crime creates fear among people thus making them avoid crime. The other assumption is that punishment should prevent offenders from committing further crimes. Deterrence differs from other theories of sentencing because it aims at preventing crimes in the society. Retribution, on the other hand, regards punishment as a response to crime, whereas, deterrence regards punishment as a tool for preventing further crimes in the community. In practice, deterrence theory implies that judges need to take in to account preventive factors when sentencing offenders. Judges should aim at preventing individuals from committing crimes in future by giving them harsh punishments that will make them fear committing crimes in future. Deterrence theory also seeks to prevent crimes by instilling fear among the entire community to make the weary of committing similar crimes in future. A judge should therefore take in to account the effect of a sentence in preventing crimes both from the offender’s perspective and from the community’s perspective. The incapacitation theory is based on the need to prevent offenders from committing other crimes in future. This theory aims at protecting the public from cases of crime from one person or a group of people. Under this rationale, punishment is given based on the probability of an offender committing further crimes in future and not based on the current crimes of the offender. Likelihood of an individual to commit an offence in the future is based on the offender’s criminal history and past convictions in courts of law (Ashworth and Redmayne, 2010, pp. 78). According t this theory, sentences have to be effective in limiting an individual from committing other similar or different crimes in the community. This theory is different for deterrence theory, which advocates for punishment as a way of preventing crimes in future. Incapacitation, on the other hand, advocated for prevention of crimes in future by taking away an individual’s ability to commit crimes (Cassese, 2008, pp. 105). This theory is also different from retribution theory because it does not consider proportionality of punishment in relation to the crime. The main objective of the incapacitation theory is to prevent an offender from committing other crimes in future by limiting his or her chances to commit crimes. Incapacitation can be achieved through incarcerating individuals and taking them out of the society. This limits physical movements and freedoms of an individual to commit crimes in the future. Examples of incapacitation include life sentences, three strikes sentencing and back-to-back life sentences (Cassese, 2008, pp. 106). In practice, incapacitation theory requires the judge to determine various factors when issuing a sentence including an offender’s criminal history and his or her likelihood of the offender to commit other crimes based on his environment or his behavior (Cassese, 2008, pp. 111). The judge should not only focus on the crime in question but also explore the history of the offender in order to ensure that the sentence he gives is preventive in nature. References Ashworth, A. J., & Redmayne, M. (2010). The Criminal Process, 4th edition, Oxford: Oxford University Press. Cassese, A. (2008). International Criminal Law, 2nd edition, Oxford: Oxford University Press. Davies, M., Croall, H., & Tyrer, J. (2005). Criminal justice: an introduction to the criminal justice system in England and Wales. Harlow [u.a.], Longman. Read More