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Restorative and Reparative Theories

Essentially advocates a movement away from traditional punishment:

● Sentences should be concerned with restitution and reparation

● Sentences should repair the individual and the harm done to society

or the victim

● Also implies that the response to an act shouldn’t necessarily be

dictated by the state but by all the interested parties, placing

compensation and reparation ahead of mere punishment

● Cohen (1985) views these perspectives as inclusionary rather than

exclusionary but still sees them as potentially blurring the

boundaries between state and the personal

There are various approaches to sentencing

Sentencing is a social phenomena

This phenomena isn't necessarily based on

the evidence of 'what works'

1. Reintegration of the offender into society with specially designed systems of punishment

2. A reaction to Modernism and to theories generated from the human sciences regarding

human behaviour as a product of its environment and therefore susceptible to change

3. Assumes that some or many offences are determined by social pressures, psychological

difficulties or situational problems

4. Sentences should be tailored to the needs of the individual offender

Critique Scott (2009)

1. Crime is not an illness but a social construct

2. Human beings are not animals to be trained

3. ‘Cures’ can be intrusive and ineffective

4. Open – ended nature of the sentence can infringe on right

Deterrence Theories

1. Incapacitation removes the element of choice and removes the

offender or potential re- offender from circulation

2. A response to the existence of ‘choice’ present in deterrence and

rehabilitation, choice equals potential danger

3. The management of risk

4. The identification of potential threats

5. The rights of potential victims are prioritised over the rights of

potential offenders

Critique Scott (2009)

1. Crime is cyclical and generational, for incapacitation to work we

would have to constantly incarcerate large sections of the population

2. Incapacitation is grounded in flawed positivism, prediction and risk

● Sentencing which discourages reoffending

● Reaffirms norms and values

● Inspired by Beccarias Classicism

● Utilitarian, there to maximise the happiness and solidarity of wider society

● This can mean either general or individual deterrence

● Individual Deterrence – deterring someone who has offended from offending again

● General Deterrence – using punishment as an example to others

Critique Scott (2009)

1. Can we quantify the experiences of pain and pleasure?

2. Can we measure the deterrent effect?

3. Is deterrence universal?

4. what about impulsive and opportunistic crime?

5. There is very little evidence to support the idea that harsh punishments work

Hudson (2003)

Introduction

Desert or Retributive Theories

Utilising the work of Hudson (2003) and Cavadino and Dignan (2007) we will be focussing on the various 'Philosophies of Punishment’ as a way of demonstrating the differing ways punishment has, and is, contextualised

Why Punish?

Offenders deserve to be punished:

● The amount of punishment should be proportionate to the

amount of wrongdoing

● Punishment functions to restrain and control

● Individuals are rational and responsible

● The assumption is that the system is also rational and

responsible, ie punishes equally and reflects an equal system

● Proportionality

Critique Scott (2009)

1. Society is unequal, the enforcement of the criminal law is

focused on working class property offenders

2. Those who are punished tend be poor both financially and in

regards to life chances

3. The majority of offenders never receive any formal punishment

4. Does punishment degrade both the offender and dehumanise

those who call for it?

5. Is social balance restored?

Considering its general usage, Hudson (2003) in ‘Understanding Justice’ postulates that the

origins of many of the ideas surrounding punishment can be contextualised as below. We punish

because:

● it’s deemed that people ‘deserve’ it

● victims need to be reassured about the validity and capability of the state

● it’s a valid way of offenders making amendments for the harm they have caused

● it reaffirms societal laws

● punishment performs societal functions

What is Punishment?

The classic definition of punishment was constructed by Antony Flew (1954) who

proposed that punishment can be deconstructed to five basic propositions:

1. it must create human suffering

2. arise as a direct result of the perpetration of an offence

3. only be directed at the person who undertook the offence

4. be the intentional creation of other humans in response to that offence

5. be inflicted by an authorised body representing the embodiment of the rules or laws of the society in which the offence was committed

Key issues within these definitions:

1. non state intervention is not legitimate

2. to what extent is state intervention legitimate

3. are state punishments justifiable

Theories of Punishment

Ashworth (2003) theorises that the rationale for sentencing can be broken down into five

main approaches:

● Desert or Retributive Theories

● Deterrence Theories

● Rehabilitative Sentencing

● Incapacitative Sentencing

● Restorative and Reparative Theories

POPULISM

PUNITIVENESS

(ii) “Penal Populism” Pratt, J (2007)

Pratt suggests that as recorded crime rates have declined

in most Western countries the use of prison has soared. He theorises that this is due to:

(i)The New Punitiveness (2005)

● Theorists such as Pratt, Brown and Hallsworth suggest that

we are entering a new dawn of punishment, a phenomena

they term “The New Punitiveness”

1. governments basing penal policy in line with the sentiments

and aspirations of the general public rather than their own

bureaucratic organisations

2. he refers to this voice as the voice of ‘penal populism’

3. the development of stronger links between the public and

policy makers due to the rise of anti-crime social

movements, radio hosts and victims rights lobbyists

4. this has led to the decline of the influence of practitioners

and academics

● Hudson (2003) states any of these approaches to punishment

can be accommodated by the system, however this dependence

is dependant on changing fashions and public/political

pressures

● the earliest penal codes of modern societies prioritised

deterrence as a way of enforcing strong societal codes

● reform and rehabilitation of offenders was fashionable during

the nineteenth and for most of the twentieth

● however the collapse of the rehabilitative ideal in the 1970’s led

to the return of public protection and to punishment according

to principles of just deserts and retribution

● Hudson (2003) believes that all these approaches are

represented within the penal code but that the balance changes

dependant on the wider context

Courts: The Fulcrum of the Penal System

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