Justification for Sentencing and Punishment - Essay Example

Justification for punishment By student’s name Course code+ name Professor’s name University name City, state Date of submission Justification for punishment Introduction Sentencing refers to the system of the law that provides for the punishment of offenders. Punishment is therefore the state imposed sanctions on a person who has been found guilty of wrongdoing that is, breaking the law.Punishment involves imposition of hardships to the person who has broken the law and also includes deprivation, meaning denying them or taking away from the person something that is of value for the wrong committed.(Bagaric 2001, 4) One of the main issues that arise in relation to punishment is the justification that can be made for the state’s administration of hardships to the offenders. This essay will therefore look at the basis for which punishment is justified and the reasons for punishing. The essay will also focus on the discussion on why punishment cannot be justified. Sentencing and punishment The Crimes (Sentencing Procedure) Act 1999 in section 3A provides for the purposes of sentencing. From the provisions of the Act, it is clear that the position of the law is that sentencing, and consequently punishment, is justified as long as it serves one of the purposes set out in section 3A of the Crimes Act. According to the Act, the purposes for sentencing include; ensuring that the offender is adequately punished, to deter others from committing such crime, to protect the community from the offender, to rehabilitate the offender, to make the offender accountable, to denounce such conduct of the offender and as a way to recognize the harm caused to the victim and the community as a result of the crime. (Australian Law Reform Commission 2005, 2) According to the law, so long as one or all of these purposes is being fulfilled then sentencing of the offender is justified. In making justifications to promote the idea of punishment in the society and in a state as a whole, it is important to show that the positive effects achieved through punishment outweigh the negative effects. This means that where a system of punishment would be seen as morally repugnant, the society would then be required to abolish the system. (Anderson 1997, 20) In regard to the purpose of punishment, the need to ensure that the offender is adequately punished brings about the principle of proportionality that has been introduced by the courts. This means that, when sentencing, the courts ensure that there is proportionality between the sentence and the crime committed. A serious crime therefore will have a severe sentence. In regard to deterrence, the harsher the sentence, the greater the deterrence effect on the community. Sentencing involves confining the convicted person such that they are detached from the community. The purpose is to ensure that the community is protected from the criminal. This means that no further harm can be done on the society by the criminal. (Tomasic et al. 2009, 45) Sentencing is imposed as a way of rehabilitating the offender to make him a law abiding citizen. This purpose is set to ensure that once the convicted person is released back to the society, then there will be no risk of further harm to the community. However, there are issues in regard to the rehabilitation purpose of sentencing. This is because once a person is sentenced they are confined in one place together with other criminals convicted of different crimes. In some cases, the person acquires new criminal activities from sentencing as compared to rehabilitation.(Carlsmith 2008, 128) Sentencing is also done as restitution to the victim of the crime. This means that the law tries to reinstate the victim to the state they were in before the crime through sentencing the criminal. Whether this purpose is accomplished is another matter altogether. This is because once the crime is committed, the effect on the victim cannot be reversed. The consequences of the crime to the victim remain even after sentencing. Sentencing therefore can only be considered as providing justice or retribution to the victim. Despite the fact that these purposes of sentencing are clearly set out in the law, this does not automatically justify sentencing and punishment. (Manson 2001, 87) Discussion as to the justification of punishment There are two theories that majorly deal with punishment. There is the theory of utilitarianism that holds the view that punishment is inherently morally wrong due to the pain it causes to the wrong doer. The theory further holds that punishment is however justified because the pain caused to the offender is outweighed by the positive effects of punishment, for example, deterrence of crime, retribution, rehabilitation and restitution.(Edney et al. 2007, 9) This theory has however, been criticized due to the fact that incarcerating high numbers of offenders does not necessarily lead to less crime. So far, no punitive form of punishment has been successful in eradicating crime in the societies. This stems from the fact that though in some cases crime levels may go down as a result of punitive punishment, the fact still remains that there still crimes being committed. Further, there is also evidence showing that even after serving their sentence, some of the offenders still continue to commit crimes. This means that the objective for the justification of this theory, which is the benefits of punishment are not always achieved. However, this theory remains more persuasive than the retributivism theory. The theory of retributivism on the other hand asserts that wrongdoers deserve to suffer and that the institution of punishment is set out to inflict such kind of suffering on the wrongdoers.Retributive theories of punishment agree on three aspects. First, the theories agree that only the wrongdoers that are blameworthy deserve punishment. This means that, according to the theories, punishment is only justified in cases where the wrongdoer committed the crime deliberately. Where such is not the case then punishment is not justified and hence should not be imposed.(Edney et al. 2007, 9) Secondly, that the punishment imposed must be proportional to the crime that was committed. This means that the sentence or punishment imposed must be reflective of the seriousness of the offence committed by the offender. This brings out the principle of proportionality which guards against harsher sentences or lenient sentences being imposed on the offender. Thirdly, the theories agree that punishment can only be imposed for the sole purpose of punishing the offender and not for any other purpose or aim. There are a number of criticisms made against the retributive theories. The shortcomings associated with these theories arise from the fact that they cannot justify the need for punishment without considering the consequences or the effects of punishment. These theories rely on supposed good outcomes of punishment in order to justify punishment. Reliance on such issues means that punishment is not desirable in itself but is instead considered as worthwhile only when the objectives of punishment are met. (Kelly et al. 2009, 459) Labeling theory of punishment Reductivism is a commonly cited justification of punishment. Reductivism justifies punishment on the basis that it reduces the incidence of crime. Punishment in this case is justified by the alleged future consequences, that is, the ability to control crime. The discussion around this theory is the fact that once punishment is inflicted, there is less crime as compared to if there was no punishment being imposed. According to the theory, punishment achieves the prevention of crime in several ways. Among them is deterrence of the individual from committing any further crimes. Once a person has been punished for committing a crime, the unpleasant nature of the punishment ensures that the offence is never repeated by the offender. The basis for the argument lies in that punishment is meant to prevent re-offenders. (Oswald 1992, 428) However, this is not the case in regard to individual deterrence. There is the discussion that the offenders who suffer severe penalties are more likely to commit the crime again. This means that punishment has other effects which may outweigh the deterrent effect of punishment. These effects are referred to as the “labeling effects” of punishment.According to the labeling theory, arresting offenders and punishing them labels them as criminals in the society. This leads to stigmatization which makes it hard for the offenders to be rehabilitated to become law abiding citizens. Punishment in this case would have failed in its objective of deterring crime. This is not to say that punishment does not deter crime but rather it means that such deterrence effects on the offender are limited and therefore should not be overestimated.(Clarke 1982, 36) Another purpose for sentencing is the fact that it incapacitates the offender such that they cannot commit further crime. It simply protects the society from the offenders. The offender is physically prevented from committing the crime again through sentencing, whether temporarily or permanently. This is one of the reasons used to justify capital punishment in that once the offender is executed, the offenders cannot commit the crime again. Life imprisonment is one of the sentences that is normally used to incapacitate the offenders and prevent any further commission of the crime permanently.There are issues that arise as to the extent to which punishment reduces crime through incapacitation. The effects of imprisonment in regard to incapacitation can only be considered as modest. This is attributed to the fact that criminal careers are short and therefore by the time the offender is imprisoned they may have been on the verge of giving up on crime. Further, there is also the fact that once a group of offenders are imprisoned, a new generation of offenders emerges and therefore the incapacitation effect of imprisonment is significantly reduced. This therefore means that though the individual offender may be incapacitated such that they cannot commit any further crime, this does not prevent other offenders from springing up and taking up the same criminal activities. (Ashworth et al. 2011, 284) Punishment is recognized as a way to communicate to the offenders. Communication in this sense is aimed at showing the offenders that their conduct is wrong and that such conduct cannot be condoned, hence the need for punishment. Punishment is therefore a way to show the offenders that their conduct is not in line with the standards set in the society. The purpose is to ensure that the offenders are reformed. (Primoratz 1989, 39) Conclusion Punishment can be justified where it is useful and deserved. This is to say that punishment should be able to serve a certain purpose and that the offender being punished should be deserving of this punishment. From the discussion above, it is clear that determining whether or not punishment is useful is not a simple matter. In some cases, the form of punishment chosen may have a lesser impact or usefulness as was intended. It is clear that the purposes set out in the law to justify punishment as well as sentencing are not as straightforward as they seem. There are concerns as to whether or not sentencing achieves the purposes set out in the law. No matter the choice of the theories of punishment, the fact is that the achievement of the positive effects that are supposed to outweigh the negative effects on the offender are not easily achieved. References Bagaric, M. 2001. Punishment and sentencing: A rational approach, Routledge. Carlsmith, K. M. 2008. On justifying punishment: The discrepancy between words and actions,Social Justice Research, 21(2), 119-137. Kelly, Erin I., 2009. Criminal Justice without Retribution, Journal of Philosophy, 106: 440–462. Anderson, J. L., 1997. Reciprocity as a Justification for Retributivism, Criminal Justice Ethics, 16: 13–25. Crimes (Sentencing Procedure) Act 1999 Edney, R., & Bagaric, M. 2007. Australian sentencing: Principles and practice, Cambridge University Press. Tomasic, R., & Dobinson, I. 1979. The failure of imprisonment: An Australian perspective, Law Foundation of New South Wales and George Allen & Unwin. Australia Law Reform Commission 2005. Sentencing of federal offenders: Discussion paper, Australian Law Reform Commission. Ashworth, A.J., and Zedner, L., 2011. Just Prevention: Preventive Rationales and the Limits of the Criminal Law, in R.A. Duff and S.P. Green (eds), Philosophical Foundations of Criminal Law, Oxford: Oxford University Press, 279–303. Primoratz, I. 1989. Justifying legal punishment, Prometheus Books. Clarke, D. H. 1982. Justifications for punishment. Crime, Law and Social Change, 6(1), 25-57. Manson, A. 2001. The law of sentencing, Irwin Law. Oswald, M. E. 1992. Justification and goals of punishment and the attribution of responsibility in judges, Lösel et al.(eds), 424-34. Read More