Offender-Instrumental Theories of Sentencing - Essay Example

Offender-Instrumental Theories of Sentencing Instrumental theories of punishment are sometimes referred to as Consequentialist or Utilitarian theories of punishment view criminal penalties as justified on the basis of the desirable consequences (other than fairness) which are intended to be achieved: particularly, the prevention of future criminal acts by this offender or other would-be offenders. There are four such theories, they include: incapacitation, rehabilitation, deterrence, as well as denunciation Incapacitative sentencing endeavors to protect the citizens from future offending by the particular criminal being punished. The criminal is not sentenced because of the conviction offence, but simply according to predictions as to his or her chances of committing the offence again. Predictions of future offending are more often than not heavily controlled by the level and type of the individuals past convictions (New Zealand Ministry of Justice, 2014). According to Joycelyn (2005), one major concern of incapacitation is how long to detain the person. Selective incapacitation is the policy of detaining some criminals longer because of their chances of recidivism. Sadly, there is little confidence in people’s ability to forecast who may continue to commit a felony or how long a person might be dangerous. Auerhahn (1999) established that even the best forecasts contained an error rate of forty-eight o fifty-five percent, implying that the forecast would be wrong about half the time- in fact, no different from chance. Hence, until people’s ability to foresee future risk advances, it does not appear to be a legitimate argument to make use of incapacitation to avert future harm. Since incapacitation is futuristic, it is believed that the incapacitative phase is supposed to last provided that the risk exists. Thus, this might be conflicting with principles of justice, even assuming we could foresee risk correctly. Once more, this assumes that individuals can correctly foretell risk, a very problematic assumption (Joycelyn 2005). According to rehabilitation theory, the objective of rehabilitation is to avoid future crime by granting the offenders the ability to achieve something within the restrictions of the law. Rehabilitative measures meant for criminal offenders generally include treatment for problems such as chemical dependency, mental illness, as well as chronic violent behavior. Rehabilitation also incorporates the use of educational programs that provide offenders the skills and knowledge required to compete in the job market. Therapy is one of the forms of rehabilitation and examples of therapy are drug therapy and psychological counseling. Drug therapy is meant for those offenders who are addicted to drugs while psychological counseling is or those offenders who grew up in abusive homes (Larrabee 2006). Rehabilitation seeks to transform not just individual criminals, but also the social circumstances contributing to criminal way of life. Links between crime and, for instance, poverty and drug addiction are well known. To some extent, these social ills cause crime. Treating persons troubled with these symptoms does not stop the disease from spreading and infecting so many others. Thus, such problems go beyond individual offenders, and a whole criminal justice system would eliminate the structural conditions producing so many criminals. Criminal behavior bespeaks a sick culture rather than just a deviant individual under this theory (Murphy 1994). Rehabilitative explanations for punishment have lost the support of the majority of people since the 1970s because of attacks from two sides. One side argues that rehabilitation is basically morally wrong; while the other side claims that it is too unrealistic. Retributivists, who believe that a criminal must be disciplined just because he or she ought to suffer acting as payment for his or her offense, lead moral critiques of rehabilitation. Retributivists argue that through pampering criminals with education and therapy, we fail to exact the demands of justice. This injustice is most obvious when putting into practice individualized sentencing since it can bring about different punishment for the similar crime and can as well excuse a criminal from serving hard time. Retributivists find such inequalities patently unjust (Murphy 1994). Retributivists also find this method of sentencing morally unjustifiable since it denies criminals’ responsibility for their actions through attributing their deeds to forces beyond their control, for instance, their sickness or circumstances. Thus, rehabilitation treats the criminals as if, in the end, they are not responsible for their choices. According to the retributivist, this reduces them to a child or an animal and brings about techniques that strip criminals of their dignity (Murphy 1994). Deterrence theory is based on the perception that, if the outcome of committing an offense prevails over the benefit of the offense itself, the person will be deterred from committing the offense (Whitley 2012). This is established in the idea that all persons are conscious of the difference between right and wrong as well as the penalty associated with illegal or criminal behaviors. Deterrence works on a specific as well as a general level. General deterrence is meant to prevent crime within the general population. Hence, when the state punishes the offenders it serves as an example to others in the general populations who have not yet involve themselves in criminal events. General deterrence is intended to make people alert to the horrors of official sanctions so as to persuade them against committing offenses. Examples of general deterrence are the use of corporal punishment as well as the application of the death penalty (Net Industries 2014). Specific deterrence means that the punishment should prevent the same person from committing crimes (Whitley 2012). Specific deterrence operates in two ways: First, an offender may be put in prison or jail to physically prevent him or her from committing another offense for a specific period. The second way is that this incapacitation is deliberately intended to be so horrible that it will put off the offender from repeating his or her criminal deeds (Net Industries 2014). One problem associated with deterrence theory is that it presumes that human beings are rational actors who think about the outcomes of their behavior prior to making a decision to commit an offense; but, time and again this has not been the case. For instance, half of all state convicts were under the influence of alcohol or drugs at the time of their crime. Thus, it is not likely that such individuals are deterred by either the severity or certainty of punishment due to the fact that their capacity to reflect on the pros and cons of their deeds is momentarily impaired (Christopher 1999). Another way of comprehending why deterrence theory is more limited can be seen through taking into consideration the criminal justice system’s dynamics. If there was hundred percent assurance of being arrested for committing an offense, then few people would commit crimes. However since a good number of the crimes committed, including serious ones do not result in an arrest as well as a conviction, the general deterrent effect of the assurance of punishment is significantly reduced. It is without a doubt that enhancing the harshness of punishment will have little effect on people who do not believe they will be arrested for their deeds (Valerie, 2010). . Another difficulty encountered in assessing deterrence is that in order for sanctions to deter, potential criminals have got to be familiar with sanction risks and consequences prior to committing a crime. In this regard, research shows that the general public has a tendency underestimate the harshness of sanctions commonly imposed. Thus, this is not shocking since members of the public are many a time oblivious of the particulars of sentencing policies. Potential criminals are also not likely to be familiar with the amendments to sentencing policies, hence lessening any deterrent effect. The absence of such information on knowledge of punishment risks makes it hard to draw conclusions concerning the deterrent effects of sanction levels and predictions (Valerie, 2010). Denunciation theory is also sometimes referred to as the indirect general prevention, affirmative general prevention, or expressive function of punishment analyses criminal penalties as a way of defining as well as emphasizing important social customs of appropriate behavior. The main objective of the denunciation theory of sentencing is to put across the society’s disapproval of the offense that was committed (Law Connection, 2012). Denunciation also aims at pressuring the government to get tough on crime, for example, drunken driving, terrorism, and pedophilia and gun crime. Society has insisted these crimes should not be taken lightly and also, the criminals ought to be punished accordingly for the offenses they have committed. This theory is a clear message that the general public will not put up with behavior that is seen as negative. Denunciation theory is probably the basis of having mandatory minimum sentences for particular crimes. For instance, life imprisonment is the mandatory sentence for murder and there is no regard for the person. Another example of the objective of denunciation is giving a criminal a recommended minimum of five years sentence for rape. The denunciation theory is a mixture of Utilitarianism as well as retribution. It is retributive since it promotes the view that criminals deserve to be disciplined. Denunciation is likewise utilitarian since the idea of being publicly condemned serves as a deterrent (Law Connection, 2012). References Auerhahn, K. 1999. Selective Incapacitation and the Problem of Prediction. Criminology 37, 4: 705–734. Christopher, M. Substance Abuse and Treatment, State and Federal Prisoners, 1997. Bureau of Justice Statistics Special Report, 1999. Joycelyn, M. (2005).Prisons: Today and Tomorrow. London: Jonnes and Bartlett Publishers. Larrabee, A. (2006). Punishment vs Rehabilitation in the Criminal Justice System. Retrived From http://voices.yahoo.com/punishment-vs-rehabilitation-criminal-justice-119962.html Law Connection. (2012). Sentencing Theory – Backgrounder. Retrieved From http://www.lawconnection.ca/content/sentencing-theory-backgrounder Murphy, J. (1994). Punishment and Rehabilitation. New York: Wadsworth Publishing Company. Net Industries. (2014). Punishment- Theories of Punishment. Retrieved From http://law.jrank.org/pages/9576/Punishment-THEORIES-PUNISHMENT.html New Zealand Ministry of Justice. (2014). The Rationales and Goals of Sentencing. Retrived From www.justice.govt.nz/publications/global-publications/s/sentencing-policy-and-guidance-a-discussion-paper/3.-the-rationales-and-goals-of-sentencing Whitley, K. (2012). Honor and Revenge: A Theory of Punishment. London: Springer publishers. Valerie, W. (2010). Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment. Retrieved From www.sentencingproject.org Read More