Sentencing Theories Philosophies and Practices

Sentencing Philosophies/Theories/Practices

Punishment is based on four main theories, namely: retributive theory, deterrent theory, reformative and preventive theory. Retributive theory is the first and most important of all the theories. When a person falls down, he/she inadvertently kicks the floor. It is generally believed to be a kind of revenge and would usually not serve any punitive purpose. The deterrent theory punishes the offenders and deters the wrongdoing most importantly; it also deters the public in general by punishing the offender and prevents them from committing a crime, which is regarded as an offence. Preventive theory prevents the offender from committing the same crime, while reformative theory on its part does the job of rehabilitating the offender. To modern penologists, purposeless punishment is useless. They hold the belief that every criminal is a mere patient and should be treated like a human being. These four theories have their advantages and disadvantages (Akers, 2000; Moyer, 2001).

Retributive Theory

Retribution is possibly the most ancient and oldest punishment justification, by which an offender amends or makes for his/her wrongdoings when receiving his due punishment. It deals with a spirit of revenge, at least since the formulation (around 1875B.C.) of the Code of Hammurabi (a tooth for a tooth and an eye for an eye), the leaders have supported it and the general public accepted the fact that every criminal should be made to suffer. Several authorities have tried to make the forms of human punishments dependent on instinctive reactions, which may be referred to as anger, wrath, resentment and revenge. Both philosophers and theologists supported the theory of retributive justice (Tonry, 2005). Some have sought to demonstrate the use of elementary punishment in the animal kingdom, in their efforts to legalize the instinctive foundation of punitive action. However, seeking the equivalent of human punishment in animal behavior is hazardous. But, most times, we observe that the way humans react to the public and the injured party in the face of crime is always wrathful, indignant and rather spontaneous. In the American society, a particularly offensive crime like rape, cold-blood murder, or kidnapping, incites a wave of widespread resentment and indignation. Even in places like India, it is common to hear of a pick-picketer who got caught in the act and got beaten black and blue. Such wrongs and injuries always incite a spontaneous instinctive anger and wrath (Zaibert, 2006).

The conventional retributive principle of let the punishment fit the crime was the main basis for sentencing practices used on criminals in most parts of the 19th century in Western Europe. This standard of punishment was consequently modified in a neoclassical notion to understand that certain offenders who commit this type of crimes or other ones similar to it, may be less culpable or blameworthy as a result of factors they cannot control (e.g., mental defect or disease, immaturity, diminished society). Under the retributive theory of just deserts, the moral gravity of the offense committed and the punishment meted out to the offender should tally and, also match the offender's characteristics to a lesser extent (Von Hirsch, 1992).

A recent example of retributive values in use as the foundation for punishment includes necessary sentencing guidelines and policies in the United States. Necessary sentences read out consistent sanctions for individuals who commit certain types of crimes (e.g., improved penalties for offenses committed with the use of firearms), while determinate sentencing guidelines and policies recommend detailed punishments, depending on the seriousness of the criminal offense and the extensiveness of the offender's past criminal records (Tonry, 2005). Uniform with a retributive philosophy, punishment carried out under these sentencing schemes pays attention mainly on the severity and the characteristics of the crime and not the offender.

Though retribution is mostly connected to criminal sanctions, it is also applicable to several other legal and informal sanctions. For instance, civil proceedings based on the principle of severe liability is related to retributive philosophy in the sense that both punitive and compensatory damages concentrate on the severity of the forbidden act and not the characteristic of the offender (Zaibert, 2006). Both lethal and nonlethal sanctions, emanating from blood disputes between rival families, range battles in agrarian societies, terror attacks on both civilian and government targets, and some acts of street justice by vigilante forces and other such extrajudicial groups, are mostly fueled by the twin motives of retribution and revenge. Various economic sanctions and punishments that put a restriction on business practices (e.g., injunctions, asset forfeitures, product boycotts, slowdowns and strikes by workers, decertification of programs, revocation of licenses, cease-and-desist orders, and denial of benefits) may be vindicated based on different utilitarian grounds, such as protecting the society or deterring any wrongdoing, but they may eventually replicate the general belief in making sure the punishment is suitable for the crime (Zaibert, 2006; Tonry,2005).

Deterrent Theory

The deterrence doctrine asks a basic question about the connection between human behaviors and sanctions: Are legal and extralegal sanctions important for minimizing deviance and achieving compliance? The effect of punishment becomes deterrent when the fear of the punishment or its imposition results in conformity (Tay, 2005). A punishment's deterrent value is directly related to the uniqueness of those punishments. Exclusively, punishments have the highest potentials for the determent of misconduct when they are certain, severe, and quick in their application. Also, punishments are largely viewed as effective for instrumental conduct (i.e., purposeful actions channeled towards achieving some precise goal) and for future offenders who have little commitment to deviance as a source of income (e.g., the individual is not a habitual offender) (Jacobs, 2010).

Deterrence depends on a balanced notion of human behavior in which individuals can freely make a choice between alternative action plans to increase pleasure and reduce pain. From this conventional perspective on punishment and crime, criminal solutions to given problems become unattractive when the cost of the action surpasses the expected benefit. Certain, severe and quick sanctions are costs that are believed to stand in the way of the possibility of taking part in deviant behavior (Tay, 2005). From a deterrence point-of-view, any sort of punishment (such as: informal, monetary, corporal, or incapacitative), which has some long future deterrent effect is perceived to be certain, severe and quick.

The study work on the efficiency of criminal punishments lists the four main types of deterrence, such as (Jacobs, 2010; Tay, 2005):

Specific Deterrence includes the efficiency of punishment on the future behavior of that particular individual. Recidivism rates (e.g., rates of repeated offences among previous offenders) are always adopted for measuring the specific restriction value for punishments.

General Deterrence questions if punishing certain offenders stops others from committing deviant offences. Comparing crime rates across different jurisdictions or overtime is mostly used to measure the overall deterrent value of punishment.

Marginal Deterrence concentrates on the comparative efficiency of different punishment techniques, such as specific or general deterrents.

Partial Deterrence looks at situations where the threat of sanctions comes with a certain deterrent value, even when such sanction threats fail to encourage positive behavior.

When the deterrence philosophy is used for penal reform purposes, it is always a justification for escalating the severity of sanctions, especially in the Western more developed nations (Zimring and Hawkins, 1973). Legislative responses to terror attacks, child abductions, drug trafficking, and violent crimes on properties owned by schools, have been primarily directed at increasing both the severity and duration of punishments (e.g., being a drug baron and taking part in deadly terror attacks have been termed capital crimes under the federal laws of the United States). Though these more severe punitive procedures may be necessary for pacifying extensive public demands to get tough on crime, the general and specific deterrent effect of these efforts is possibly limited without paying attention to the other important conditions for efficient deterrence (i.e., high celerity and certainty of punishments) (Jacobs, 2010).

Preventive Theory

A key utilitarian aim of punishment includes different actions created to reduce the physical ability of a person to commit deviant or criminal acts. Incapacitation is the popular principle under this theory, which concentrates on eliminating individuals' tendencies for deviance and crime through various types of physical action restraints (Walen, 2011). The confinement conditions may be so appalling that they minimize the subsequent desire of the offender to partake in any sort of misconduct, but such deterrent effect is not an important aspect of incapacitation in its earliest and purest form. Conversely, one night in the drunk tank imprisonment in military fortifications, or the confinement of an unruly adolescent are mostly considered helpful incapacitative tactics, even when such practices fail to bring about a reform in a person's behavior (Zimring and Hawkins, 1973).

Several devices, structures and techniques have been used, all through history, as ways of incapacitation. The ancient tribal practices of banishing people to the Wilderness, the English means of transportation of prisoners to other territories between the 17th and 18th centuries, the exile of citizens in the early Greek culture, and political exile in modern times are some examples of incapacitative sanctions, since they include the physical exclusion of people from their previous communities, which restricts their physical tendencies for committing crimes in the original setting (Zimring & Hawkins, 1995). The pillory and stocks in Colonial America and English history were instruments used for both incapacitation and public ridicule. Other forms of incapacitating hardware are as varied as electronic shackles used for keeping track of offenders in open spaces, Breathalysters that stop drunk drivers from kick-starting their vehicles, Kiddie harnesses to checkmate the movement of infants in public places, and chastity belts that limit sexual promiscuity (Tay, 2005).

The purpose of incapacitation may equally be served by other forms of legal and extralegal limitations on one's behavior. Other types of incapacitation that involves civil or administrative decrees are court-ordered injunctions, restraints of trade agreement and federal boycotts, restraining orders in cases of violence at home, cease-and-desist orders, foreclosures, license revocations, and passing certification requirements to carry out certain tasks (e.g., college degree requirements for teaching, passing bar and medical board exams for practicing law and medicine, respectively) (Walen, 2011; King and Mauer, 2002). Most of these actions are nothing but economic sanctions because they go with financial consequences for the people involved, but these administrative and civil rules can equally be seen as incapacitative because they limit a person's possible actions physically. Ostracism, the process of spreading negative publicity, lumping (i.e., doing nothing and failure to respond to a person's enquiries), and censorship, are some informal and extralegal means of placing physical restrictions on a person's behavioral opportunities.

The most popular type of incapacitation involves some kind of imprisonment, or what has been termed by others as penal bondage (King and Mauer, 2002), apart from their incapacitative consequences on the restriction of instant criminal tendencies, penal bondage of debtors, social misfits, criminals, vagrants, and other deprived groups over some periods, and geographical situations has most times involved an aspect of forced labor (e.g., public works projects, forced servitude in military campaigns) as a basis of imprisonment (Fogel & Hudson, 1981).

Reformative Theory

According to the reformative theory, the reformation of the offender should be the object of punishment. This is not always a punishment, but a simple rehabilitative process. Its aim is to make the criminal as much a better citizen as possible through moral and ethical trainings that teach him to live an upright life and be a useful citizen. This is established on the conclusion that no crime is as a result of an original sin in any criminal, but a product of the person's environment, his low crime tendencies and training. Though it may appear to be a kind of contradiction or a bit odd to state that we punish for the reform and treatment of the offenders, this theory has two principles (Ashworth, 2003).

The Rehabilitation Principle

The main rehabilitation goal is the restoration of a convicted offender to a productive place in the society through a combination of education, treatment, and training. The salience of treatment as a philosophy for punishment is specified by the modern jargon of reformatories, correctional facilities, and therapeutic community now used for describing prisons, jails, and other institutions of incapacitation (Ward, 2004). The relationship between places of incapacitation and reforms are recognized all through most available written history. The first forms of penal confinement in towers, dungeons, caves and other dark and scary places, were mostly incapacitative in their main function, but certain degree of spiritual and moral enlightenment was expected of people who were condemned to long periods of private confinement. This scheme of reform restraint is evident in settings of religious penance in the Judeo-Christian practices adopted in the British colonies in North America, the Western Europe and elsewhere. It is equally manifested in the United States' history in the early development of penitentiaries and reformatories. These massive incarceration systems penalized ill-advised criminals and youth by keeping them in isolation so they could think about their divergent actions, turn a new leaf, and subsequently, reform their behavior. Both reflection for spiritual reform and confinement are of central importance among all religious principles found in Buddhism and Hinduism (Ashworth, 2003).

As opposed to retribution that lays emphasis on uniform punishments based on the severity of misconduct, rehabilitation concentrates on the very characteristics of individual offenders, which require both intervention and treatment. The individual-based treatment approach is reasonably consistent in definite sentencing plans that gives large discretion to the judges to tailor their punishments for the greater benefit of the individual offender and make parole boards available with an equal high discretion, to either retain or release offenders for treatments in the future (Ward, 2004). By applying recent theories of human behavior and the most modern therapeutic techniques for the modification of behaviors, rehabilitation experienced rising acceptance in several countries, all through most part of the 20th century (Ashworth, 2003).