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Penal Theory

Danielley Criminology Undergraduate degree English

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Penal Theory

Current Legal Position
- CJA (2003) s.142
  - punishment
  - reduction of crime
  - reform and rehab
  - protection of public
  - making reparation
Retributivism
- Retributivism
- Rationale
  - relevant and deserved
  - consequences = irrelevant
  - protective of rights
  - assuming rationality of offender
- Hegelian 'right to punish'
  - righting wrong = more important than deterring/preventing
  - crime as a 'choice'
  - criminals as 'rational'
- Kantian retributivism
  - punishment should always be deserving
  - never means to greater good
  - never punishing innocent for society
  - life for life
  - morality, doing right thing (rather than what is useful)
  - against discretion
- Criticism of classical retributivism
  - punishment for punishment sake: cruel and unjust
  - Tonry: proportionality conflicts with parsimony - COST
  - Rubin: doesn't address how prisoners should be treated in prison
  - what about mitigating/aggravating factors?
  - to whom should debt be paid?
  - Walker: unclear view on repentance/remorse
- Modern retributivism
  - VON HIRSCH
    - returned because of worries about discretion/unrestrained incapacitation
    - aim of penal system should be JUSTICE
    - CENSURE: punishment is manifestation of public disapproval
    - respect for human dignity
    - proportionality
    - limits on severity: we don't want fear to replace moral response
    - against humiliation/degradation
    - ordinal proportionality
      - standardisation
    - cardinal proportionality
      - anchoring point
    - policy implications
      - Lippke (2007): constraint on way punishment is handed out
      - lowering sentences won't be popular
      - reducing prison costs though
      - improving prison conditions
- Punishment as the annulment of crime
  - "justice freed from subjective interest"
  - obedience based on duty not coercion
  - deterrence = side effect of desert
Deterrence
- Deterrence
- specific vs. general
- Sorg et al (2013): Foot patrol experiments, -16% phase 1, -20% phase 2 maybe fear of detection works
  - BUT: displacement, short term effect
  - Ratcliff et al (2011): foot patrol, 90 crimes prevented but 37 displaced
- Braga (2007): systematic review, focused policing works
- Bales and Piquero: imprisonment = criminogenic, holds across 3 methods
  - custodial sanctions = more criminogenic than deterrent
- Halliday (2001): don't change for deterrence
Incapacitation
- Incapacitation
- VON HIRSCH AND ASHWORTH
  - normally on basis of how likely to reoffend
  - custody, house arrest, disqualification
  - can be part of traditional view of rehab (fail-safe for incurables)
  - issues of risk assessment
  - doesn't take gravity into account
  - von Hirsch: tendency to over-predict, too many false +ves
    - FLOUD REPORT (1981): at least 1/2 'dangerous' offenders = false +ves
  - most serious = least likely to reoffend
  - issues of JUSICE
    - only way to find most dangerous = false +ves
  - not enough data on worst crimes to make predicting possible
  - public protection: worth it for minor offences? stat most likely to reoffend
  - Walker: harming others = forfeit of assumptions of harmlessness
  - Bottoms & Brownsword: 'vivid danger'
    - extreme circumstances for overriding rights/fairness
  - von Hirsch and Ashworth: issues of RESPONSIBILITY
    - state infringes on rights of citizens, citizens make decision to commit crime, state responsibility to keep public safe but constrained by issues of human rights/ethical ties/fairness
  - Greenwood: selective incapacitation for high rates of offenders works
  - Morris: should use desert as guideline?
    - use stats to determine risk of reoffending
      - disadvantages BME/poor/working class but CJS can't be expected to fix this
  - incapactiating young people?
    - crime rate declines with age
    - Kinzy (2008): unsuitable for YPs, capacity for change
  - Bottoms and Brownsword: TEST
    - seriousness
    - temporality
      - frequency
      - immediacy
    - certainty
    - von Hirsch and Ashworth: need a high threshold
  - Blokland and Nieuwbeerta (2007): selective incapac of freq offenders = substantial decline in crime
    - 25% decrease under strictest regime
  - Sampson & Laub: custodial sentences = criminogenic
  - Attractive to policy makers: quick, direct, value-free
    - Duker and Malsch: not enough on its own though, we need value driven response as well
  - DANGERS
    - moral panics, lack of proportionality
  - Barker (2010): controversial whether cost of incap cancels out crime reduction
  - Albrecht: 2 track system in Germany
    - track 1: retribution, commensurate sentence
    - track 2: preventive, non-com sentence for special offenders (e.g. mentally ill, drug addicts, re-offenders
- Malsch and Duker (2012): wider definition
  - all sanctions impeding/restricting/making impossible certain actions without aiming to achieve any other goals (e.g. rehab)
    - e.g. ASBOs, restraining orders
- Tonry: incap = flipside of rehab
Rehabilitation
- Rehabilitation
- form of consequentialism, 1960s, mixed model in CJA (2003)
- OLD REHAB
  - borstals (16+), 3y, strict regime, end of sentence not decided until real progress seen
  - American Friends Service Committee (1970): rehab = inconsistent with justice, systematically discriminating, excessive intervention disprop to offence
  - Committee for the Study of Incarceration (1976): rehab offends notions of desert + proportionality
  - Morris and Howard (1964): excessive, intrusive, unjust - going too far in trying to change people
- RENAISSANCE
  - new interest in 1980s, asking what works
  - McGuire (1995): advent of the meta-analysis
  - starting to look at pathways into crime
    - causes of crime and respsonsivity
  - Gelsthorpe: criminogenic needs
  - Halliday Report (2001): strong case for rehab, considerable prospect of reducing crime (5-15 percentage points)
    - leads to CJA (2003) mixed model
- NEW REHAB
  - learning rather than treatment
  - cognitive behavioural approach
    - reducing impulsivity
    - R&R and ETS
  - explicit models of causes of crime
  - rehab related to offender risk level
  - programmes targeting 'criminogenic needs'
  - Evaluation of accredited programmes
    - Home Office Research Findings (2002)
      - 670 adult males, 2y reconv analysis - 2ys custody + R&R/ETS
        -14% med-low, -11% med high, -3% low -5% high
    - Sex Offender Treatment Programme (SOTP)
      - adult males, 4y+
        sig dif for med but not high/low
    - Home Office (2003)
      - adult males, 6m+, R&R and ETS
        no stat sig diff for any risk group
      - Pathfinder progs
        T completers = reduction, T non-completers = increase
    - problems: limited time, attrition, selection bias, expansion/implementation
- Normative arguments in favour:
  - state-obligated
  - benefits community: lowering crime rate, paying back through RJ
  - Benefits victim: less likely to be revictimized
  - Benefits offender: less chance of reconviction/rightsbeing taken away
  - addresses causes of crime
  - Increasing legitimacy? 49% say rehab = #1 purpose of punishment (Making Punishments Work
- can include RJ and community penaltiees
Restorative Justice
- Restorative Justice
- What is RJ?
  - Mostly used with YOs
  - Reparation: confronting crime and making plans to repair damage
  - victim-offender mediation, family group conferencing (influenced by Braithwaite's theory of re-integrative shaming) and circles (usually at sentencing)- can be beginning, middle or end (prison)
    - minor offences
  - Popular with YOs in N. Ireland
  - Part of normal procedure in Australia/NZ
- Normative arguments for RJ
  - Legitimacy
  - Public confidence
  - Letting offenders 'know the harm they've caused'
  - Giving victims power + 'closure'
    - Lyon (2009): 2008-9: 80% victims satisfied and 90% would recommend to other victims
  - Repaiment to disadvantaged communities
  - Maintaining community ties
  - Broader theme of community regeneration and helping communities to help themselves
  - Seeing how inadequate offenders are
- Empirical arguments for RJ
  - Valuable in reducing reoffending - it works
  - Shapland Report: -27% offences
  - Govt evaluation of Shapland report: -14% offences
  - Khan: 85% of those doing RJ are 'happy' with their experience, 50% feel they got closure, more programs need to be victim-focused though rather than focused on offender
- Arguments against RJ
  - concerns about safeguards for victims and offenders
  - inconsistency and issues of 'fairness': victims have to agree
  - Worry that victims criticising will lead to reflections on character offenders won't accept
    - Retzinger and Scheff: shaming machine
  - what about rapists/murderers?
    - USA: death row? is there any use in this?
  - difficult to evaluate
  - worry that family members will take over (esp for young people
  - managing expectations (esp of victims)
  - in (rare) cases offenders can be scary
  - What about offenders with mental health issues?
  - Time: earlier = better for offender, later = better for victim (calming down)
- RJ in sentencing
  - Court Ordered RJ for YOs: e.g. Referral Orders
    - Introduced under New Labour Youth Justice and Criminal Evidence Act (1999)
  - Think it should be applied to adults too: something useful to do in prison: older people = more likely persistent, need cognitive transformation
  - e.g. Reparation Order
    - 10-17yo, max 24h over 3m
    - Introduced in 'No More Excuses White Paper'
    - can be apology or light work
- RJ as diversion from court
  - Reducing cost to CJS
    - Restorative Justice Consortium (2010): RJ saves 8x what it costs to deliver
  - Reducing prison pop
  - Making money? Prisoners are paying either in money or in time
  - Discretionary RJ for YOs: e.g. Youth Referral Disposal
  - Lyon (2009): good outcomes when used instead of prosecution
- Ways to improve RJ:
  - Designing safeguards
  - empowering victims and offenders to decide who should be there (esp juvs)
  - Hogg and Brown: encouraging use as diversion (best when open shut admission of guilt
  - Braithwaite and Mugford: invite lots of people from both sides for support (stopping offender blaming)

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Description: Undergraduate degree Criminology Mind Map on Penal Theory, created by Danielley on 06/04/2014.
Created by: Danielley
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Penal Theory

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