Significance of Imprisonment in Contemporary Punishment Practice - Coursework Example

Significance of Imprisonment in Contemporary Punishment Practice Introduction The Coalition Government of the UK is seized with ensuring the safety and security of its law – abiding citizens. Any individual posing a threat to this safety should envisage a swift and effective response. It is the task of the criminal justice system to provide such response, which includes punishing offenders, protecting the public and reducing recidivism[Lor10]. In addition, section 142 of the Criminal Justice Act 2003, sets out the objectives of sentencing. These are punishment, reduction of crime, reform and rehabilitation, protection of the public, and reparation. A crucial factor from the perspective of the Criminal Justice Act 2003, with respect to the sentencing framework, is that of the seriousness of the offence committed and the offender’s circumstances[Sen10]. As such, this is a factor that significantly influences most of the important decisions relating to sentencing. A custodial sentence is to be imposed, only when the gravity of the offence demands nothing short of incarceration, and wherein a fine or community sentence cannot be vindicated[Sen10]. However, the duration of the sentence should be the shortest that is proportionate to the seriousness of the offence. Furthermore, the gravity of the offence, under the Criminal Justice Act 2003, is determined by evaluating the culpability of the offender and the harm caused, foreseeable or intended. Moreover, this Act provides for the enhancement of the level of seriousness of the offence, when there is a presence of certain factors. Some of these factors are the existence of previous convictions, the commission of the offence when the offender had been released on bail, presence of an offence that had been racially or religiously aggravated, or motivated by hostility based on disability or sexual orientation[Sen10]. Furthermore, the submission of an early guilty plea is recognised in all common law jurisdictions as sufficient grounds for imposing a sentence that is more lenient. It has been acknowledged that this is essential for encouraging offenders to admit to their guilt at the earliest. This prevents the continuing distress experienced by victims and witnesses, due to having to testify and anticipating the trial process. Furthermore, an early guilty plea significantly reduces the cost of the trial and the expenditure incurred by those preparing for the trial[Lor10]. However, the principles of sentencing could be compromised if the reduction in the sentence were to become very high with regard to a guilty plea. In the UK, sentencing is significantly influenced by the level of culpability of the offender with respect to the offence and the harm caused by it. These considerations are unaffected by pleading guilty. This is due to the fact that the seriousness of the offence and the culpability of the offender for the crime are not mitigated by such a plea. Therefore, pleading guilty should not have the effect of reducing the punishment substantially below a level that reflects these concerns[Lor10]. Neoliberalism and Punishment Wacquant has described neoliberalism as a transnational political project that is aimed at re – establishing from the top, the association between market, state and citizenship. This is achieved by the new global ruling class that is attempting to establish itself firmly. This group straddles the senior executives and the highest officials of the multinational firms, high – ranking politicians, state managers and top – notch official of the transnational organisations[Che10]. In addition, Wacquant declares that neoliberalism, in addition to a reassertion of the dynamic aspect of capitalist production and market exchange, also expresses certain institutional logics. These are deregulation of the economy, withdrawal of welfare protection, a penal apparatus that continuously expands it scope of activity. It is important to realise that penalty is one of the essential features of neoliberalism rather than an exception or deviation[Che10]. The neoliberal nations are strong adherents to the doctrine of punitive common sense, which had been created in the US. As a result, these countries accord the highest governmental priority to criminal insecurity and punishment. The objective is to control the social reverberations of advanced social insecurity created by neoliberal policies[Che10]. These are generated among the members of the lower and middle classes of society. Utilitarian Theory and Punishment The utilitarian theory possesses a consequentialist character. This theory acknowledges that punishment affects the offender and society. It emphasises that the total benefit derived from punishment should exceed the total evil of the crime. Consequently, punishment should not have an unlimited nature. For instance, the release of a prisoner afflicted with a debilitating illness. When the demise of such a convict is impending, there is no benefit to society on account of his incarceration, as he cannot indulge in criminal activities[Net13]. Moreover, this theory stipulates that laws related to punishment for crimes should be aimed at dissuading future criminal behaviour. Deterrence operates at the general and the specific levels. The connotation of general deterrence is that the punishment should preclude other individuals from engaging in criminal conduct[Net13]. The punishment inflicted upon a criminal notifies others that criminal conduct will attract punishment. On the other hand, specific deterrence denotes that punishment should prevent a convict from committing further crimes. It functions in two ways. First, the criminal is incarcerated in a jail or prison in order to prevent, physically that person from indulging in crime for a specific period. Second, such incapacitation is to be sufficiently unpleasant, so that it discourages recidivism in that prisoner[Net13]. Rehabilitation aims to prevent future criminal conduct by providing offenders with the capacity to thrive in a lawful manner. Some of the common rehabilitative initiatives for criminals are treatment for mental illness, drug dependence, and protracted violent behaviour. It also consists of conducting educational programmes that provide offenders with the skills and knowledge required to compete effectively in the job market[Net13]. However, this is opposed by the retributive theory, wherein prisoners are punished for criminal behaviour, as they deserve to be punished. The peaceful balance of society is disrupted by criminal conduct, and this balance is restored by means of punishment. The crime becomes the focus of this theory, and the reason for imposing punishment[Net13]. The Sentencing Council for England and Wales has acknowledged that there are several reasons for restricting sentences of Imprisonment for Public Protection (IPP) to the extremely serious cases. At present, several of the offenders serving IPPs have been inflicted with unduly severe sentences. These offenders lack the capacity to establish that they are fit to be released with the result that there is a serious imbalance in the system. It has also been recommended by the Sentencing Council for England and Wales that Section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 should be revived, so that violent and sexual offences can be inflicted with extended sentences[Lor10]. As such, the optimal use of prisons to punish serious and dangerous offenders also requires discussion regarding the manner in which prisons can be used for remand. Proper use of remand in custody protects the public, and the recent initiatives in legislation related to procurement of bail reflect these concerns. These changes have served to strengthen this legislation[Lor10]. Moreover, it is obvious that the courts should have the choice to remand a defendant in custody in serious cases. The courts should also have such choice with regard to offenders who pose a risk of recidivism that could result in injury. Nevertheless, thousands of individuals are remanded in custody pending trial. Their offences are such that they would not be imposed upon with a custodial sentence on being convicted[Lor10]. In such cases, there is little if any benefit to be derived from the custodial remand. What the criminal justice system can properly achieve with prisoners who have not been convicted is limited. Consequently, the government has expressed the intention of eradicating the option of remand in custody for defendants who are unlikely to receive a custodial sentence. Such a course of action will not defeat the purposes of justice. Failure of such defendants to attend the court will not hinder the trial, which will proceed in their absence[Lor10]. Furthermore, offenders who had been imposed with a custodial sentence of a year or more in duration, for sexual or violent offence, will be monitored after their release under the Multi – Agency Public Protection Arrangements. This is also the case with offenders who are considered to be capable of causing serious harm to the public[Lor10]. These arrangements have proved to be highly successful, and require the police, prison service and probation to combine their individual efforts with a view to oversee and prevent the risks posed by the dangerous offenders in society. This is an approach that has been painstakingly calibrated based on the risk posed by individual offenders. It would be unethical for a government to promise the total elimination of risk[Lor10]. However, the UK Government has assured the nation that it would ensure the effective punishment, rehabilitation and sentencing of offenders. All the same, from the perspective of functionalists, prisons perform several positive functions in society. For instance, prisons have a deterrent effect, which serves to reinforce social regulation and preserve society’s equilibrium. This has the benefit of making good the lacunae inherent in other systems, such as the educational system [Rea11]. It achieves this salutary effect by incapacitating those who break the law. However, in the final analysis, one could tend to decry the effectiveness of prison, chiefly due to the 60% rate of recidivism. This indicates that the prison system is not very successful in restoring equilibrium. In fact, prisons tend to re – socialise people into criminal standards, and in the worst scenarios individuals are rendered institutionalised and devoid of the capacity to reintegrate into society on being released from prison[Rea11]. Moreover, it has been contended by the Marxists that reliance on prison serves to overlook the drawbacks in the system that produce inequality and poverty, which culminate in criminal activity. Moreover, the imprisonment of specific constituents of the lower social classes destroys opposition to the system. In addition, the incarceration of several underclass members removes from society the more deplorable members of a capitalist society. Furthermore, the focus of the media, courts and police is on crimes committed by the working class and the lower sections of society[Rea11]. This effectively diverts attention from the avarice and immorality of the elite sections of society. In addition to this, it had been the belief that imprisonment was to be imposed on the basis of the ordinary principles of sentencing. Moreover, the duration of the punishment, within the permitted maximum, had to be commensurate with the severity of the offence committed. All the same, some reduction in the severity of the sentence had been allowed with regard to certain mitigating factors that were exclusive to a particular offender[Cro71]. Instances of such circumstances were exposure to temptation, exceptional mental pressure on account of intractable problems in the offender’s family or the disruption of that individual’s marriage. However, it was not permissible to prolong the period of incarceration. In the few instances, that such extension of sentence period was permitted there were stringent restrictions on it. In some instances, extension of the period of incarceration tended to be justified on utilitarian and retributive grounds when the criminal record of the offender warranted such a course of action[Cro71]. Nevertheless, some of the Members of Parliament in the UK are of the opinion that imprisonment may not be the ideal process to protect the public from criminals. The number of imprisoned individuals in England and Wales has been increasing substantially. This has resulted in a strain upon the prison system, which in conjunction with its failure to rehabilitate criminals necessitates some acceptable alternative to the extant mechanism[BBC98]. In addition, there are a sizeable number of probation officers who recommend non – custodial interventions. In their opinion, such schemes provide offenders with greater dignity and permit them to acquire the knowledge necessary for leading a normal life. This has been contested by others in the prison system. These people concede that many of the offenders in jail do not pose a risk to the public. However, their question is how can an assurance be given that those who are to be incarcerated are not set free? In addition, there are many people who regard the contemporary prison sentences as not being sufficiently severe[BBC98]. In general, differential motives for indulging in criminal conduct arise from social inequalities. It seems to be patently inequitable to punish an individual for crime, when it is society that has compelled that person to commit the crime. Although it is commonplace to hold the offender responsible for the harm done by him to society, it should be realised that his criminal conduct is the outcome of what has been done to him by society. This has been the considered opinion of Alan Norrie[Lea04]. While retributivism is a justification for punishment pertaining to the crime committed by the offender, deterrence concentrates on the punishment to be meted out to the offender so as to dissuade him from committing it once again. Moreover, the retributive theory concentrates on the seriousness of the offence and the punishment that such crime deserves. On the other hand, deterrence theory focuses on the characteristics of the offender and the punishment that will prevent him from repeating the crime[Lea04]. Stated succinctly, retribution is seized with making the offender pay for his crime, whilst deterrence is concerned with affecting the future conduct of the criminal. Thus, deterrence is crime control oriented and not focused on due process. It is for this reason that deterrence theory is on occasion referred to as utilitarianism. The latter was a theory propounded by the 18th century English philosopher Jeremy Bentham. He was of the opinion that punishment and other actions had to be justified with reference to whether they enhanced or diminished human happiness in its totality. Moreover, deterrence is also referred to as consequentialism, because it justifies punishment by referring to its influence on reducing offending[Lea04]. The notion that a specific sentence will prevent a particular criminal from repeating his crime, may engage in making assumptions regarding that criminal’s personality. In general, deterrence theory presumes that individuals will evaluate the gains from crime, Vis – a – Vis the disadvantages and pain of the likely punishment; and that this assessment will determine whether they will engage in crime[Lea04]. From the point of view of the utilitarian theory, extension of the period of incarceration would prove to be an effective deterrent to criminal conduct. On the other hand, the retributive theory justified such extension on the grounds that the repetition of the offence enhanced the gravity of the crime that was repeated. This was based on the perception that the offender had chosen to break the law intentionally, even after having been warned in the strictest of terms about the serious view taken of such behaviour[Cro71]. All said and done, the UK Government strongly believes that the criminal justice system has to be rebalanced in favour of the victim. As a corollary, it has to be ensured that the guilty are suitably punished[Dye04]. Conclusion According to the above discussion, it can be surmised that the present punishment processes accord considerable importance to deterrence. Excessive focus on deterrence generates a number of practical problems, which tend to be of a psychological and sociological nature. The policy of depriving a criminal of his liberty for a term of imprisonment that is incommensurate with the seriousness of his offence is based on the assumption that the public does not require special protection against the habitual offender. It is also based on the presumption that the public is sufficiently protected from violent recidivism by the severity of the sentence that has been inflicted upon the criminal for his present offence. References BBC NEWS, 1998. Is prison the best punishment?. [online] Available at: [Accessed 29 July 2013]. Cheliotis, L. K. & Xenakis, S., 2010. What’s neoliberalism got to do with it? Towards a political economy of punishment in Greece. Criminology & Criminal Justice, 10(4), pp. 353 – 373. Criminal Justice Act (c.44), 2003. London, UK: Her Majesty's Stationery Office. Cross, R., 1971. Punishment, Prison and the Public. London, UK: The Hamlyn Trust. Dyer, C., 2004. Juries may be told of previous convictions. [online] Available at: [Accessed 28 July 2013]. Lea, J., 2004. Sentencing and Punishment. [online] Available at: [Accessed 28 July 2013]. Lord Chancellor and Secretary of State for Justice, 2010. Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, London, UK: Mnistry of Justice. Net Industries, 2013. Punishment – Theories Of Punishment. [online] Available at: [Accessed 27 July 2013]. Powers of Criminal Courts (Sentencing) (c.6), 2000. London, UK: Her Majesty's Stationery Office. Realsociology, 2011. Examine sociological perspectives on Prison as a form of Punishment in society (12). [online] Available at: [Accessed 27 July 2013]. Sentencing Advisory Panel, 2010. Advice to the Sentencing Guidelines Council: Overarching Principles of Sentencing. [online] Available at: [Accessed 25 July 2013]. Read More