Theories of punishment

Question 1

According to Zedner (2004) what are the prerequisites of formal punishment?

Answer 1

(a) There can be no crime without law
(b) There can be no punishment without law

Question 2

Punishment can be divided into three camps, what are these?

Answer 2

reductivist (reduces future potential crime), retributivist (from retribution,
the offender deserves to be punished) and reparation (repairs and restores- criminal makes
amends).

Question 3

What does Reductivism focus on?

Answer 3

Reductivism is based around the idea that punishment can be justified by its ability to prevent crime from happening again in the future. There are several different forms of reductivist justification for punishment; deterrence (putting people off), rehabilitation (improving people) and incapacitation (reducing or removing the possibility of offending). These are collectively known as consequentialist approaches.

Question 4

Explain the theory of deterrence.

Answer 4

Deterrence involves putting people off committing crime through either a sentence of punishment they themselves have received and found to be unpleasant (individual deterrence) or through seeing the unpleasant effects on other people (general deterrence).

Question 5

What is a quote from Bentham on deterrnece?

Answer 5

According to Bentham, general deterrence is when “The punishment suffered by the
offender presents to everyone an example of what he himself will have to suffer, if he is
guilty of the same offence”

Question 6

Explain utilitarianism and deterrence.

Answer 6

by this theory you should always strive for the greater good and in punishment terms that means you should punish people so that others are put off from committing crimes in the future as that will save potential victims from pain and potential future criminals from
punishment, therefore a harsh sentence is justified for deterrence purposes but only as much as is necessary to achieve this.

Question 7

Jeremy Bentham argued that
only the minimum amount of punishment necessary to produce deterrence should be used. True or false?

Answer 7

True

Question 8

Under utilitarianism, how has punishment evolved over the years?

Answer 8

However, historically, punishments have often been arbitrary (based on random choice or
personal whim, rather than any reason or system) and overly severe like being hung, drawn and quartered or shipped to another country for a relatively minor crime. The system of punishment has moved from severity to certainty with a more consistent tariff approach.

Question 9

Beccaria argued what when it comes to punishment?

Answer 9

Cesare Beccaria was an Italian philosopher who believed that punishment was too harsh and people of lower status were often much more harshly treated. He believed punishment should be measured to fit the severity of the crime. He believed offenders made decisions based on “rational choice”, uninfluenced by their social or personal conditions (such as poverty or any
biological factors) and so the extent of punishment should be graduated to fit the severity of the crime and not the nature of the individual criminal.

Question 10

What is quote from Beccaria regarding purpose of punishment?

Answer 10

The purpose, therefore, is nothing other than
to prevent the offender from doing fresh harm to his fellows and to deter others from doing likewise…

Question 11

What is a summary of Beccaria’s theory of punishment?

Answer 11

in a nutshell, punishment should only be severe enough to put others off doing the same thing in future, thus creating happiness for the largest possible number of people and
avoiding too harsh a level of pain on the criminal.

Question 12

There are a number of difficulties with general deterrence theories according to Von Hirsch et al; 1999) what are these?

Answer 12

• How does one decide how severe punishments have to be in order to make people
  decide not to commit offences?
• Is the same level of severity appropriate for everyone? (are we all deterred by the
  same things?)
• Are all offences rationally assessed? What about those offences where there is a
  high degree of emotion?
• Is it the case that all those people one might wish to deter will actually know about
  punishments that have been imposed?

Question 13

Individual detterence such as young offenders detention centres are widely critiqued, why?

Answer 13

The Home Office’s own evaluation of the initiative was that the regimes were no more
effective than those they had replaced. Reviews of research evidence on boot camps conclude that the “evidence suggests that the military component of boot camps is not effective in reducing post-boot camp offending” (Wilson et al, 2005: 18) or that “by themselves, (boot camps) typically do not have an effect on participants odds of recidivism” (Meade and
Steiner, 2010: 841).

Question 14

What is a critiques of the USA’s “Three strikes and you’re out” individual deterrence approach?

Answer 14

. The idea is that the extent of the punishment increases as the number of previous
offences rises, with a cut off, usually of three, which triggers an exemplary sentence. Huge
numbers of offenders have been sentenced to lengthy periods of imprisonment, especially in states such as California, and yet there is little evidence of any significant impact on crime
(Zimring et al, 2001).

Question 15

Hudson 2003 critiques individual deterrence. why?

Answer 15

• It allows the innocent to be punished (the principle os simply that some punishment
  must be meted out in order to remind others of its existence).
• It allows some punishments to be imposed that are in excess (often well in excess) of
  the harms done by the offence (in one infamous case in California a twice-convicted
  felon received a “third strike” life sentence of 25 years to life for the theft of a slice of
  pizza from a group of children. The sentence was reduced to 6 years on appeal.)
• It allows for punishment of crimes that have not yet been committed.

Question 16

Another theory of punishment within reductivism is rehabilitation. What is rehabilitation?

Answer 16

Rehabilitation is the idea that an offender can be “cured” of wanting to reoffend, and
reintegrated into society, by forced treatment, given as part of the punishment imposed
through sentencing. Sentences that were longer than what would be proportionate to criminal
responsibility for the offence would be justifiable under a rehabilitation-based approach,
depending on how long it took each individual offender to be rehabilitated. This theory
reached its height in the 19th and 20th centuries in part due to the significant social changes
that took place during this period. Industrialisation and urbanisation lent weight to views that
suggested that social and political circumstances were important in understanding human
behaviour.

Question 17

What is Zedner’s quote regarding rehabilitation?

Answer 17

“At its height, punishment was recast as a means of restoring the
offender to good citizenship through programmes of training, treatment, counselling,
psychotherapy, drug and even shock treatment.”

Question 18

What is one reason critiques would argue that rehabilitation as a purpose is not effective?

Answer 18

If not treated they will get worse
Labelling theorists, such as Becker and Braithwaite there is much evidence that the criminal justice process is in itself “criminogenic”.
Many who come into contact with the criminal justice system will, in fact, go on to
display more extensive patterns of offending than might otherwise be the case.

Question 19

Why can causal factors of crime not necessarily be ‘fixed’.

Answer 19

Not all criminality and delinquency has causes that are discoverable.

Question 20

What does rehabilitation overlook?

Answer 20

Overlooks the fact that much offending is opportunistic Thus, rather than taking the view that there are deep, underlying causes that must be “treated”, there are schools of thought within criminology which take the view that even if this is the case, such causes have not shown themselves to be especially
amenable to manipulation and, consequently, we are better advised to manipulate the
circumstances in which offending takes place

Question 21

What does rehabilitation often overlook?

Answer 21

rehabilitative approaches are criticised for holding to an overly determined view
of behaviour, placing too much emphasis on social and cultural conditions, and too little on
the ability of individuals to make decisions and choices.

Question 22

Another form of reductivist punishment we will study is incapacitation, what is incapacitation?

Answer 22

Incapacitation refers to the restriction of an individual’s freedoms and liberties that they
would normally have in society. Within the criminal justice system, incapacitation is the
response used when a person has committed a crime. By incapacitating the convicted
offender, we prevent the individual from committing future crimes because he is removed
from society and locked up or restrained somehow.

Question 23

Why is incapacitation often critiqued?

Answer 23

It can be noted that incapacitation takes a forward-looking perspective in that it cannot rectify crimes that have already been committed and only attempts to prevent crimes from being committed in the future. Incapacitation is also described as being one of the four goals of
incarceration, or imprisonment. Incapacitation comes first, and then comes deterrence, rehabilitation, and finally retribution.

Question 24

Most commonly, the term incapacitation is reserved for individuals who are sent to prison or given the death penalty. What else could it include?

Answer 24

it also includes things like being supervised by
departments within the community, such as probation and parole. Day reporting centres and ankle bracelets with GPS tracking devices may also be incorporated to incapacitate an
individual.

Question 25

What is an extreme example of incapacitation that we do not adopt in the UK?

Answer 25

Western societies have also used so-called “chemical castration”, which includes court
ordered injections of a hormone that prevents the male offender from being able to perform sexually (and may include minor surgery as well). This has been used to incapacitate some sex offenders in both the United States and Europe.

Question 26

What is selective incapacitation?

Answer 26

selective incapacitation has been employed in an attempt to lock up fewer offenders, namely those who have committed more crimes in general and more violent crimes, for longer periods of time. This alleviates prison
overcrowding and excess spending on incarceration. Selective incarceration is in contrast to collective incarceration that locks up more people at a time, such as in the case of mandatory minimum sentences for certain crimes

Question 27

Why is incapacitation not necessarily effective at preventing further criminality?

Answer 27

This approach focusses on identifying those who pose the greatest risk of offending in the
future, and protecting the public from their reoffending by physically preventing them from committing crime – by sending them to prison or disqualifying them from driving, for
example. This approach at preventing or reducing crime holds no assumptions about our ability to rehabilitate offenders, includes nothing which seeks to bring about reform and shows no interest in the harm caused by crime other than the general displeasure signalled by the imposition of the punishment

Question 28

Quote Hudson’s view on incapacitation

Answer 28

“If general deterrence and general rehabilitation are difficult to achieve, it perhaps seems
a plausible goal to protect potential victims from further crime by known offenders through
physical incapacitation, either by rendering criminals physically harmless, or by removing
them from circulation.”

Question 29

The UK no longer has the death penalty as a from of incapacitation. How does this differ from the US.

Answer 29

The death penalty was abolished
in Britain in 1965 and the vast majority of developed countries have also ceased using
execution as a punishment for crime, with the notable exception of the United States. In
March 2021, Virginia State Senate voted to abolish the death penalty, down grading their
death row inmates to life without parole. However, in May 2021 South Carolina became the 4th US State to reintroduce the firing squad as a “choice” for offenders facing death penalty alongside the electric chair and lethal injection.

Question 30

Besides the death penalty, what other method of incapacitation is widely critiqued.

Answer 30

One area where there is considerable debate concerns sex offending and whether there is
anything that can be done to prevent further offending. Some countries, for example Czech
Republic, still use surgical castration – the removal of the testicles – but this is regarded by many as being in contravention of the Convention on Human Rights.

Question 31

Why might many people argue that incapacitation is effective in tackling criminality?

Answer 31

“The crime rate will go down if persons who habitually commit most of the predatory
crimes are kept in prison for a reasonable period… because they will not then be free to
commit more crimes… one obvious effect of prison is to separate law breakers from the
law-abiding society”.

Question 32

What is retributivism?

Answer 32

Retributivism justifies punishment through sentencing on the grounds that it is deserved by the offender. Unlike reductivism, it “looks back” to the offence which has been committed to justify punishment. On this view, punishment is justified because people have made the voluntary choice to commit crime. Therefore, convicted criminals are morally responsible for their actions, and should be blamed, and censured by the state in the form of punishment, as a
result.

Question 33

How does retributivism differ from reductivism?

Answer 33

retributivists also say that offenders
should only be blamed and punished to a level proportionate with the extent to which it is fair to blame them for what they have done, and with the seriousness of the of the offence of which they have been convicted and no further (unlike reductivism).

Question 34

Explain retributivism’s view of ‘just deserts’

Answer 34

Cardinal/Ordinal - This approach is known as “just deserts” sentencing, and is linked with
the idea of proportionality between an offence and the way it is punished. This includes ordinal proportionality (comparably serious offences should receive comparably serious sentences) and cardinal proportionality (the setting of the overall level of punishment). The key text in this movement was called Doing Justice by von Hirsch.

Question 35

According to von Hirsch
(1993) the argument for proportionality involves three steps. What are these?

Answer 35

1. The state’s sanctions against proscribed conduct should take a punitive form, that is,
   visit deprivations in a manner that expresses censure (severe disapproval) or blame.
2. The severity of a sanction expresses the stringency of the blame.
3. Hence, punitive sanctions should be arrayed according to the degree of
   blameworthiness (i.e. seriousness) of the conduct.

Question 36

What does the retributivist idea of just deserts assume?

Answer 36

Desert theorists proceed on the assumption that offenders are free willed and can therefore be held morally to account for their actions.

Question 37

What does just deserts ignore?

Answer 37

It suggests that censure is connected with a crime that has actually been committed with no
further thoughts given to reducing potential future crimes

Question 38

What is the most straightforward explanation of retributivism?

Answer 38

Perhaps the most straightforward expression of retributivism is to be found in the lex talionis– “an eye for an eye, a tooth for a tooth, a life for a life” Exodus 21, 23-5).

Question 39

How is retributivism similar to the works of Immanuel Kant?

Answer 39

retributivists hold that punishment should not be a means to an end, but an end in itself. The punishment is there because the offender deserves it and there is no purpose beyond that. He argues in his theory of “Categorical Imperative” that people should only do to others what they wouldn’t mind being done to them..

Question 40

What is the main issue of retributivism and just deserts?

Answer 40

The main issue with proportionality is that some offences are obviously more serious, i.e.
murder is worse than a DUI but how do you decide what ranking the other crimes get? As
Hudson (2003:45) puts it, “the problem is that deserts theory can help with the graduation of punishments within the most severe and least severe points, but can do nothing to tell us what those anchoring points should be”.

Question 41

What does retributivism fail to take into account?

Answer 41

it fails to take into account any social and economic issues that may have contributed to the crime being committed or how deliberate or pre meditated the act was.

Question 42

What is denunciation?

Answer 42

Denunciation is the idea that the disapproval of an act by society is expressed by the
imposition of a punishment. The purpose of denunciation is not so much to punish the
offender but to demonstrate to law-abiding citizens that the particular behaviour which is
being punished, or denounced, is not acceptable. In this respect, it has been argued that “punishment is not like a private letter; it is like a billboard put up on a busy street… it is also meant for the victim of crime and for the public at large’.

Question 43

What does Durkheim say about denunciation as a purpose of punishment?

Answer 43

Durkheim (1960) argued that denunciation was a form of education in that punishment
“reinforce(s) the conscience collective of society and thereby ensure(s) that members of society continued to refrain from crime”. This is a forward looking or utilitarian approach which is similar to the concept of deterrence

Question 44

What does Duff argue about denunciation?

Answer 44

Antony Duff (1986) claims that punishment is “an attempt at moral dialogue with offenders,
censuring their actions and hoping to secure their ‘contrition’, with the result that they mend their ways.” Cavadino says this view ‘resembles denunciation’ but also contains elements of reform and reintegrative shaming.

Question 45

How is denunciation used in the UK?

Answer 45

In the UK, denunciation is used through the use of the media. Newspapers, social media and news outlets via TV and radio denounce criminals regularly by reporting on high profile crimes, the sentences carried out, in turn showing the general public
the offenders behaviour has been suitably punished and is unacceptable.

Question 46

How does Cavadino criticise denunciation?

Answer 46

Cavadino says research indicates that citizens generally seem to have sufficient respect for
the justice system to obey the laws in society and are not particularly influenced by the level of punishment imposed for particular offences - bearing in mind that people often have quite inaccurate beliefs about what the penalties are for particular offences. As a consequence, he argues that using the notion of denunciation to justify punishing offenders is a dubious mechanism to use

Question 47

Why is the perception of being caught more effective than prison as deterrence?

Answer 47

the certainty of being caught is a vastly more powerful deterrent than
the punishment. Sending an individual convicted of a crime to prison
isn’t a very effective way to deter crime. Police deter crime by
increasing the perception that criminals will be caught and punished.
Increasing the severity of punishment also does little to deter crime.
There is no proof that the death penalty deters criminals. (Daniel S
Nagin, 2013)