Written by Suzie
Davis as part of her Easter revision.
The idea of retribution is to punish the
offender for his behaviour as an attempt to rectify justice. The punishment
given is in proportion to the crime committed i.e. an eye for an eye, a tooth
for a tooth. The harshest form of retribution, although not available in
England is the death penalty for murder. However, retribution does not aim to
change the offender or his behaviour and also fails to deter future offenders.
The
Court of Appeal has over the years set many different tariffs e.g. for rape and
drug offences. Although this system may seem fairer as all offenders get the
same treatment/punishment it leaves the judge no room for discretion and does
not take into account the circumstances of the crime. Retribution can be seen
as a form of revenge for both the justice system and for the victim as the
offender is being getting their Œjust deserts¹.
Custodial sentences are often used with the aim of
retribution. This is because by placing the offender in prison you are
punishing them for the offence by removing their liberty and freedom. This type
of sentence is only passed where the court considers the crime to be so serious
that only a prison sentence would be adequate to protect the public. The judge
when passing this particular type of sentence takes into account previous
convictions or the failure of the offender to respond to previous sentences. If
the offence was committed whilst on bail for another offence this will also be
taken into consideration, and lead to the sentencing being more severe.
On top of prison sentences extended sentences can be given
where the offender is then on a Œprobation¹ period during which they are at
liberty on license. This is used mainly in the sentencing of sexual offenders.
Additionally suspended sentences can be given, which means that although the
sentence does not come into affect immediately if during the time allocated the
offender commits another crime the prison sentence is Œactivated.¹
Custodial
sentences also work on the basis of three other aims denunciation,
incapacitation and deterrence. It is denunciation as the public is showing
their disapproval of the offender¹s actions as they are Œshunning¹ the offender
by placing them in prison. It is incapacitating to the offender as they can no
longer offend whilst in prison, although future incapacitation of the offender
is not guaranteed. It will also help deter the offender from re-offending and
possibly others from committing that particular crime, as the sentence faced
will be harsh.
Denunciation is more an act of society
showing its disapproval for the offender¹s behaviour. It aims to deter future
offenders by openly punishing previous offenders for their behaviour. An
example of this would be the courts having the power to disqualify a person
from driving for a certain period of time. Usually a fine will also be given in
conjunction with disqualification. The courts impose long sentences for death
by dangerous driving and have increased sentences for drink driving in an aim
to cut offences. Lord Denning expressed his view: ŒPunishment is the way in
which society expressed its denunciation of wrong doing; and in order to
maintain respect for the law it is essential that the punishment inflicted for
grave crimes should adequately reflect the revulsion felt by the great majority
of citizens for them.¹
With the increase in racism related
violence, both denunciation and deterrence are common aims when sentencing
offenders responsible for these attacks. If an attack was race motivated then
it is seen as far more serious than an otherwise motivated attack. For example
if an offender was tried in the Magistrates¹ Court and found guilty of an
assault with a maximum prison sentence, assuming there are no actual or serious
injuries. However, if the circumstances differed and the offender racially
assaulted a victim, then they would face two separate charges, one of assault
and one of racist assault. As a result the case would be referred to the Crown
Court, on indictment, and the offender could face up to two years imprisonment
under the Crime and Disorder Act 1998.
Incapacitation or protection of the
public
The concept is that the punishment must
serve a useful purpose; in this case the offender is made incapable of
re-offending. For example in some countries the hands of thieves are cut off to
prevent further stealing. Incapacitation is to protect the public and the most
common type is a prison sentence. The use of minimum sentences for repeat
offenders is also aimed at protecting the public. Incapacitation can be in the
form of exclusion orders, which stop the offender going where he regularly
offends. Curfew Orders are similar and are used to protect the public as they
limit the offender to a set address for a certain period of a day. It is often
enforced by electronic tagging and can last up to six months. This type of
order is seen as successful with 80% completing the tagging period
successfully. The aim of incapacitation is often most evident in mandatory life
sentences for murder and second violent or sexual offences.
Deterrence
This can refer to either
individual deterrence or general deterrence. Individual deterrence aims to
prevent the offender re-offending through fear of punishment. Suspended
sentences are commonly used, however problems with aim occur because it is
unlikely that offenders stop and think about the consequences of their actions
before committing the crime. Deterrence will also not stop those who are under
the influence of drink or drugs as they will be unable to think logically. The
fear of being punished is not actually the greatest deterrent; it is in fact
the fear of being caught, so therefore deterrence by punishment is not a truly
realistic aim.
General deterrence aims to
stop others offending by making an example of those who do offend. Again the
success rate of this aim is in doubt, as many believe that it will not happen
to them and are unlikely to think or worry about the long sentences given to
others. It also relies on the awareness of the public, which is increased by
publicity, but the media does not report many of these Œexample¹ cases. General
deterrence is also in direct conflict with the principle of retribution, since
it involves sentencing an offender for a longer period than would be in
proportion to their crime.
Rehabilitation
The aim is to reform the offender and
their behaviour as well as rehabilitate them into society. It is a positive aim
as it does not involve long prison sentences and instead works around community
punishment orders and community rehabilitation orders. Within community
sentencing there has been two new additions in relation to the rise in drugs
crimes; drug testing and treatment orders and drug abstention orders.
Reformation is also important when dealing with youths as it allows them a
second chance. By trying to adapt the youth¹s behaviour at such an age it may
help prevent them becoming a recidivist, who then will face far harsher
sentencing as a result of persistent offending. It also takes into account the
offenders background, personal circumstances and other factors that are
considered relevant. Each sentence is individual and aimed at helping that
particular person and meeting their needs. This is in direct contrast to the
tariff system idea of retribution. Offenders committing the same crimes may
indeed face different punishments if their circumstances differ. It is seen to
discriminate against those from poor, underprivileged backgrounds, as these
offenders are less likely to be seen as suitable candidates for reform.
Persistent offenders are also less likely to be considered for this aim of
sentencing, as they are unlikely to respond.
Community Rehabilitation orders place the
offender under supervision of a probation officer for up to three years. It
hopes to ensure the offender leads an honest and industrious life during this
period, and in future. The conditions of the order depend on the judge¹s
discretion but can include living at a set address, specified activities or
psychiatric treatment. This type of community sentence aims to rehabilitate the
offender, however it is not considered highly successful as 60% re-offend
within two years. Drug treatment and testing orders can last up to three years
and the treatment can be either residential or non-residential. Reviews are
held by the court, where a written report of progress and results of drug tests
are used to assess progress. The idea of this order is to rehabilitate the
offender by stopping the drug abuse.
Reparation
The
aim of reparation is to pay back the victim of the crime and possibly society.
It is see as compensation and can be in the form of fines, compensation money
paid to the victim, and in addition any other penalty deemed suitable.
Community Punishment Orders can be used in reparation to society as a whole as
the offender has to work to help society. There have been some experimental
projects bringing together offenders and victims so the offender can make
direct reparation, although this is not common practice yet. Compensation
Orders aim to repay the victim for the distress and harm caused, and these
orders also fulfill the aim of retribution as the offender is being made to pay
(albeit literally) for their actions. Fines can also be seen as reparation to
society as the money goes to public funds, and it is retribution and possibly
deterrence to others if the fine is particularly large (although magistrate¹s
often use fines, in which case there is a £5,000 limit).
Suzie
Davis,
April 2004